Smoking and vaping areas at some bars and other hospitality venues would be considered an "internal area" and be smokefree under the Ministry of Health's preferred option for upcoming regulations.
The ministry says tightening the definition would help end confusion about what is an indoor or outdoor area, providing clarity for business owners and enforcement officers.
However, an anti-smoking group and Act Party leader David Seymour have criticised the possible changes as unnecessarily harsh on vapers, who are often people who have or are quitting tobacco.
"If you are running a bar, you already have an incentive to make sure that people don't bother each other with their smoking or vaping, because you don't want to lose customers," Seymour said.
"It's not obvious there's a problem for the Government to solve."
Currently, smoking isn't allowed in an area if, when all its doors, windows and other closeable openings are closed, it is completely or substantially enclosed by a ceiling, roof or similar overhead surface, and by walls, sides or screens.
The ministry says this definition hasn't always been clear enough and, when tested by court action, judgments have been inconsistent.
After the passing of vaping legislation last November, officials are now consulting on proposed regulations, including one that would change how an internal area is defined. They've put forward four options:
• Define it as an area that's completely or partially enclosed with a roof or overhead structure of any kind, whether permanent or temporary - meaning if there's a roof or overhead structure of any kind, regardless of how much cover it provides, the area is smokefree.
• Prescribe the maximum allowable percentage of the roof or wall coverage. For example, an area would be considered internal if the total area of the roof and walls covered more than 50 per cent of the perimeter.
• Include an assessment tool in regulations that takes into account air quality.
• Keep the status quo.
The ministry prefers the first option, saying it would be relatively simple to understand and enforce.
One Auckland bar manager was surprised to hear that, and said their outside area with retractable roof was the most popular part of the bar because smoking and vaping was allowed. When it closed, punters sought out other pubs with smoking areas still open.
However, other venues weren't concerned, because their outdoor dining licence already forbade smoking (Auckland Council's outdoor licences now have a smokefree requirement included in terms and conditions).
Deborah Hart, director of Action for Smokefree 2025 (ASH), said it was disappointing that smoking and vaping were conflated, given most vapers were former smokers or dual users.
"There is a public health reason, based on evidence, that people should not be exposed to second-hand smoke. There is no such evidence for vaping and as such what is being done is legislating for what is, in essence, a public nuisance.
"It would seem with the ministry's preference, that those who have a dependence on smoking, will be pushed out in all weathers. Not even an umbrella will be acceptable. This does seem to be a punitive way to treat people with a dependence and people who are trying to get off that dependence."
Seymour said the ministry's "scorched earth" preferred option would force smokers to keep exiting and entering venues, which would cause problems, and some would drink and party at home.
Submissions close on March 15, with proposals then put to Cabinet, and regulations expected to be in place by August.
Asked if the ministry's preferred option would consider umbrellas as a temporary overhead structure, and therefore ban smoking and vaping, a ministry spokesperson said, "We look forward to receiving submissions from the hospitality sector and others about the relative merits of the options and any implications that need to be considered".
About 4500 New Zealanders die prematurely every year from smoking-related illnesses.
In 2004 New Zealand became one of the first countries to ban smoking inside hospitality venues, and because smoke particles can still be significantly higher in outdoor areas, and to generally discourage smoking, more than 50 councils have introduced smokefree playgrounds, parks and events. Some councils, like Auckland Council, have made being smokefree a part of outdoor dining licences.
About 12 per cent of adults are daily smokers, but rates are much higher for Māori (29 per cent) and Pacific (18 per cent).
Nearly a quarter of New Zealanders have tried vaping, up from 16 per cent in 2015/16.
Fifty per cent of people aged 15 to 24 were more likely to report vaping.
Recent analysis by the End Smoking NZ charity found cigarette sales are plunging faster than any time before - with 410 million fewer smokes sold annually than just two years ago.
The trend is driven by factors including cost and alternative products like vaping e-cigarettes, but needs to be accelerated if the Government's Smokefree 2025 goal of less than 5 per cent smoked tobacco prevalence is to be met.
The new vaping legislation sought to strike a balance between helping people quit smoking, and avoiding uptake of vaping and new products by non-smokers including young people.