The 'anti-smoking law' in the workplace

On the 27th of December 2005, Law 28/2005, of the 26th of December, on health measures to combat smoking and regulation of the sale, supply, consumption and advertising of tobacco products (Ley 28/2005, de 26 de diciembre, de medidas sanitarias frente al tabaquismo y reguladora de la venta, el suministro, el consumo y la publicidad de los productos del tabaco) was published in the Official State Gazette. Its aim is to promote the necessary mechanisms for the prevention and regulation of smoking, and to protect the health of the population, establishing basic limitations on the sale, supply and consumption of tobacco products, as well as regulating their advertising, promotion and sponsorship.

Josep Conesa. abogado laboralista (Barcelona)

Written by Josep Conesa

Labour and bankruptcy lawyer

More information

In which establishments is smoking prohibited?

This law completely bans smoking:

In public and private workplaces, except in open-air spaces.
In the centres and facilities of public administrations and public law entities.
In health centres, services and establishments.
In educational and training centres, regardless of the age of the students and the type of teaching.
In sports facilities and places where public shows are held, provided they are not outdoors, where smoking is permitted.
In areas intended for direct service to the public.
In shopping centres, including large areas and galleries, except in open-air areas, where smoking is permitted.
In bars, restaurants and other hospitality and catering establishments located within shopping centres and separate from the rest of their facilities, smoking shall not be permitted, regardless of their size, unless smoking areas have been set up.
In social care centres for minors under eighteen years of age.
In leisure or recreation centres, where access is allowed to minors under the age of eighteen, except in open-air areas.
In cultural centres, reading rooms, exhibition halls, libraries, conference rooms and museums.
In party venues or venues for general public use during the hours or timetable in which entry is permitted to minors under the age of eighteen.
In areas or establishments where food is manufactured, processed, prepared, tasted or sold.
In lifts and elevators.
In telephone booths, ATM enclosures and other small-sized public areas, i.e. no larger than 5 square metres.
In vehicles or means of urban and interurban public transport, company transport vehicles, taxis, ambulances, funiculars and cable cars.
In all areas of suburban transport (carriages, platforms, corridors, stairways, stations, etc.), except for areas that are entirely in the open air.
On rail and maritime means of transport, except in open-air spaces.
On aircraft departing from and arriving in national territory and on all flights of Spanish airlines, including those shared with flights of foreign airlines.
In service stations and suchlike.

Smoking areas

Smoking areas are only allowed to be set up in:

Social care centres.
Hotels, hostels and similar establishments.
Bars, restaurants and other closed catering establishments, with a usable floor space for customers or visitors equal to or greater than one hundred square metres, unless they are located inside centres or premises where smoking is prohibited.
Party venues, gambling establishments, or establishments for public use in general, during the hours or timetable in which minors under eighteen years of age are not allowed to enter, except in open-air spaces.
Theatres, cinemas and other public shows that take place in enclosed spaces. In these cases, the location of the smoking area shall be outside the performance or projection rooms.
Airports.
Bus stations.
Maritime and railway stations.
In any other place where, even though there is no smoking ban, the owner so decides.

These smoking areas that may be made available must comply with the following conditions:

They must be duly and visibly signposted, in Spanish and in the co-official language, in accordance with the requirements of the corresponding regional regulations.
They shall be physically separated from the rest of the premises of the centre or entity and completely compartmentalised, and shall not be areas of obligatory passage for non-smokers, unless they are workers or employees of the centre or entity and are over sixteen years of age.
They shall have independent ventilation systems or other devices or mechanisms to ensure the removal of smoke.
The surface area of the designated area must be less than 10 per cent of the total area set aside for customers or visitors of the centre or establishment, except in hotels, bars, restaurants and party venues where a maximum of 30 per cent of the communal areas may be set aside for smokers.
In no case may the total size of the areas set aside for smokers exceed three hundred square metres.
In establishments in which two activities are carried out, separated in space, of those listed in this article, the usable floor space shall be calculated independently for each of them, excluding from the calculation the common and transit areas, in which, under no circumstances, shall smoking be permitted.
In all cases in which it is not possible to provide these areas in accordance with the requirements, smoking shall be prohibited in the entire space.
In the smoking areas of the establishments referred to in this article, the presence of minors under the age of sixteen shall not be permitted.

As specified in this law, without prejudice to the civil, criminal or other types of liability that may be applicable, the offending parties shall be the owners of the establishments in which the offence is committed.

Sanctions

The following shall be considered minor offences:

Smoking in places where there is a total ban or outside the areas set aside for this purpose.
In establishments where the sale of tobacco products is authorised, not having or not displaying in a visible place signs informing of the prohibition on the sale of tobacco to persons under the age of eighteen and warning of the health risks derived from the use of tobacco.
Vending machines not bearing the required health warning or not complying with the legally required characteristics.
Failure to provide information at the entrance to establishments on whether or not smoking is prohibited, as well as on the existence of designated areas for smokers and non-smokers, or failure to comply with the other formal obligations referred to in this Law.
The sale or marketing of tobacco products by minors.

The following, among others, will be considered serious infringements:

Setting up smoking areas in establishments and places where they are not allowed to be set up or where they do not meet the requirements of separation from other areas, ventilation and legally required floor space.
Allowing smoking in places where there is a total ban, or outside the areas designated for this purpose.
The accumulation of three smoking offences in places where there is a total ban or outside the areas designated for this purpose, considered as a minor offence.
The marketing, sale and supply of cigarettes in numbers of less than 20 units, as well as in individual units.
The installation or placement of tobacco product vending machines in expressly prohibited places.
The sale of tobacco products at a discount.
The sale or delivery to persons under the age of eighteen of tobacco products or products imitating tobacco products and inducing smoking, as well as sweets, snacks, toys and other objects in the form of tobacco products that may be attractive to minors.
Allowing minors under the age of eighteen to use tobacco product vending machines.
The marketing of goods or services using names, trademarks, symbols or other distinctive signs already used for a tobacco product under conditions other than those permitted by this law.
The sale, transfer or supply of tobacco products in breach of the other prohibitions or limitations established in this Law.
Certain specific offences committed as a result of manufacturers, importers and distributers of nicotine-releasing devices and refill containers and herbal smoking products not complying with regulatory requirements.

The following are very serious infringements:

Advertising, promotion and sponsorship of tobacco products in all media, including information society services, subject to certain exceptions provided for by law.

Advertising, promotion and sponsorship of nicotine-releasing devices and refill containers that are not permitted shall also constitute a very serious infringement.

Sanctions

In the case of very serious infringements, temporary suspension of the offender's activity and, where appropriate, provisional closure of its establishments.
The sealing, deposit or seizure of registers, data media and computer files and documents in general.
The sealing, deposit or seizure of tobacco products.
The warning to the public of the existence of potential infringing conduct and the initiation of sanctioning proceedings.

Financial penalties shall be assessed as follows:

Minor infringements will be sanctioned with a fine of up to 30 euros if the infringing conduct is carried out in isolation, and with a fine of 30 to 600 euros in other cases; serious infringements, with a fine of from 601 euros to 10,000 euros, and very serious infringements, from 10,001 euros to 600,000 euros.

The amount of the sanction imposed, within the limits indicated, shall be calculated taking into account the risk generated for health, the economic means of the offender, the social consequences of the offence, the benefit that the offender has derived from the sanctioned conduct and the prior commission of one or more offences committed in breach of this Law.