Last updated: April 19, 2024

Key Terms

Second Hand Smoke (or similar term)

Term Not Defined
Analysis

The federal Ordinance on Workplaces does not contain a definition of “second hand smoke” or similar term. Because the Ordinance requires safeguards against the health hazards due to tobacco smoke, a definition of “tobacco smoke” would likely aid in implementing the Ordinance.

The Federal Non-Smokers Protection Act does not use the term “second hand smoke” or a similar term; therefore, a definition is not strictly necessary for interpretation of that law.

FCTC-Based Definition

The smoke emitted from the burning end of a cigarette or from other tobacco products usually in combination with the smoke exhaled by the smoker. (FCTC Art. 8 Guidelines para. 15)

Smoking or Smoke

Term Not Defined
Analysis

Neither the Federal Non-Smokers Protection Act nor the Ordinance on Workplaces contains a definition of “smoking” or “smoke”. The failure to define this key term could impede implementation or enforcement of the provisions in these laws that prohibit “smoking” in certain places. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the federal law should contain a definition of “smoke” or “smoking” in accordance with the definition provided in the FCTC Art. 8 Guidelines.

FCTC-Based Definition

Being in possession or control of a lit tobacco product regardless of whether the smoke is being actively inhaled or exhaled. (FCTC Art. 8 Guidelines para. 17)

Public Place

Term Not Defined
Analysis

The Federal Non-Smokers Protection Act does not contain a definition of “public place”. However, a definition of “public place” is not necessary to interpret the law because the law does not prohibit smoking in all indoor “public places”. Rather, smoking in most public places is regulated by state (Länder) law.

To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, either the federal law or all state laws should contain a definition of “public place” in accordance with the definition provided in the FCTC Art. 8 Guidelines.

FCTC-Based Definition

An area, permanent or temporary, that is accessible to the general public or for collective use by the general public regardless of ownership or right of access. (FCTC Art. 8 Guidelines para. 18)

Workplace

Term Defined
Definition

Workplaces are:

1. places in buildings or outdoors which are located on the site of a company or a construction site and which are intended for use as workstations,

2. other places in buildings or outdoors which are located on the site of a company or a construction site and to which workers have access within the framework of their work.

(2) Workstations are areas of workplaces in which workers have to be present not only for a short time regularly over an extended period during the work they have to perform or in the course of their daily working hours.

(3) Working rooms are the rooms in which workstations are set up permanently within buildings.

(4) The workplace also encompasses:

1. traffic routes, escape routes, emergency exits,

2. storage, machine and secondary rooms,

3. sanitary rooms (changing rooms, washrooms and lavatories),

4. rest and standby rooms,

5. first-aid rooms,

6. accommodations.

Workplaces also encompass equipment where special requirements are set for such equipment in this ordinance and the equipment is used in the operation of the workplace.

Analysis

The definition of “workplace” in the Ordinance on Workplaces aligns with the definition of “workplace” in the FCTC Art. 8 Guidelines in that it applies to all areas in which work is done, including private offices and common areas. However, to more fully align with the definition in the FCTC Art. 8 Guidelines, the definition in the Ordinance should clearly state that “workplaces” include areas “permanent or temporary” in nature, and “regardless of whether work is done for compensation or on a voluntary basis.”

FCTC-Based Definition

An area, permanent or temporary, in which a person performs duties of employment or work, regardless of whether the work is done for compensation or on a voluntary basis, and includes private offices, common areas and any other area which generally is used or frequented during the course of employment or work. (FCTC Art. 8 Guidelines para. 20)

Public Transport

Term Defined
Definition

Public passenger transport for the purposes of this law includes:

a) The public rail system’s railway vehicles used to transport passengers pursuant to §3 para. 1 of the General Railway Act,

b) The streetcars, trolley buses and automobiles used to transport passengers, to the extent the transport is subject to the regulations of the Passenger Transport Act [Personenbefoerderungsgesetz] or §a no. 4(d), (g) or (i) of the Exemption Regulation [Freistellungs-Verordnung],

c) Aircraft used for commercial or paid passenger transport or for commercial sightseeing flights,

d) Liner passenger ships, which transport passengers.

Analysis

The definition of “public passenger transport” contained in the Federal Non-Smokers Protection Act does not fully align with the definition in the FCTC Art. 8 Guidelines in that the definition in the Act enumerates certain types of public transportation, whereas the definition in the Guidelines applies to “any vehicle for carriage of members of the public.” However, as applied, the definition in the Act covers all forms of available public transportation in Germany and, therefore, aligns with the intent of the FCTC Art. 8 Guidelines.

FCTC-Based Definition

Any vehicle used for the carriage of members of the public, usually for reward or commercial gain. (FCTC Art. 8 Guidelines para. 22)

Indoor or Enclosed

Term Not Defined
Analysis

The federal law does not contain a definition of “indoor or enclosed”. The Federal Non-Smokers Protection Act prohibits smoking in federal facilities, public transport and public train stations in “buildings and other completely enclosed rooms”. The failure to define the key term “enclosed” may impede implementation and enforcement of the law. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the federal law should contain a definition of “enclosed” in accordance with the definition provided in FCTC Art. 8 Guidelines para. 19.

FCTC-Based Definition

Any space covered by a roof or enclosed by one or more walls or sides, regardless of the type of material used for the roof, walls or sides, and regardless of whether the structure is permanent or temporary. (FCTC Art. 8 Guidelines para. 19)

Tobacco Product

Term Not Defined
Analysis

Neither the Federal Non-Smokers Protection Act nor the Ordinance on Workplaces contains a definition of “tobacco product”. Although the term “tobacco product” is not used in these laws, the failure to specify the prohibition on smoking a “tobacco product”, together with the failure to define “smoking” and “tobacco product”, could impede implementation of FCTC Art. 8 and the FCTC Art. 8 Guidelines. To align with FCTC Art. 8 and the FCTC Art. 8 Guidelines, the law should contain a definition of “tobacco product” in accordance with the definition provided in FCTC Art. 1(f).

FCTC-Based Definition

Any product entirely or partly made of the leaf tobacco as a raw material which is manufactured to be used for smoking, sucking, chewing, or snuffing. (FCTC Art. 1(f))

Federal Facilities

Term Defined
Definition

Federal facilities for the purposes of this law are:

a) Government agencies, administrative offices, courts and other federal public facilities,

b) Corporations, institutions and foundations directly under federal government control.

Analysis

The definition of “federal facilities” is significant because the Federal Non-Smokers Protection Act prohibits smoking in federal facilities.

Rooms

Term Defined
Definition

Rooms for the purposes of this law are:

a) Structurally separate units of a building,

b) Physically separate units of a means of transport.

Analysis

The definition of “rooms” is significant because the ban on smoking in the Federal Non-Smokers Protection Act applies to “buildings and other completely enclosed rooms.”