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Smoke-free Lawmaking in Chinese Cities: Progress and Challenges

Huang Jinrong

This chapter examines the development of smoke-free lawmaking in Chinese Citieswith a focus on the progresses and challenges.There have been two waves of smoke-free legislation in the cities of mainland China since 1991. The beginning of domestic legislation on smoking bans was observed in the 1990s and the first half of the 2000’s. Since 2006, the WHO Framework Convention on Tobacco Control has brought a huge impact on the smoke-free legislation in Chinese cities. More and more Chinese cities have been moving towards the comprehensive smoke-free goal set by FCTC and the enforcement of smoke-free bans also has been improved considerably. The lawmaking of the national Regulation on Smoking Control in Public Places is under way in China, but the prospect of China becoming completely smoke-free in 2016 did not realize becausethe recent draft Regulation of State Coucil wasregressed considerably due to intervention from the tobacco industry. Under such a circumstance that tobacco companies enjoy special legal protection and the national revenues areheavily dependent on the tobacco tax and profit, the political will of the Chinese Government on tobacco control oftenoscillates between strict control and non-action. China will continueto face huge challenges in terms of smoke-free lawmaking and enforcement in future.

 

15.1Introduction

China is a country with the biggest tobacco production and the largest number of tobacco consumers in the world and it is also one of the countries that suffer most from tobacco epidemic. More than one third tobacco products in the worldare consumed in China. According to an official report, there were 300 million adult smokers in China, and the smoking rate for male was 52.9%in 2012. 740 million non-smokers were frequently exposed to second-hand tobacco smoke and the exposure rate in public places was 72.4%. It was estimated that more than 1 million Chinese died fromdiseases related to smoking every year and if the situation did not change, the annual death toll of Chinese related to tobacco use would be 3 million by 20501.Under such a circumstance, tobacco hazards will be a total disaster for the public health in China if no effective measures on tobacco control are taken. Chinese government began to realize the tobacco hazards in early 1990s and adopted several policies and laws on tobacco control ever since. However, it was until August 2005 when the Chinese Standing Committee of the National People’s Congress ratified Framework Convention on Tobacco Control (FCTC), the Chinese Government did not take tobacco control seriously. Thischapterdiscusses the progresses made and the limitations in smoke-free lawmaking in Chinese cities, and presentsan analysis of the prospect of smoke-free legislation in China and thechallenges it is facing on the basis of a description of the tortuous process of enacting Regulation on Smoking Control in Public Places by Chinese State Council.

15.2Smoke-freelawmaking in Chinese cities

Smoke-freelawmaking started in China in the early 1990s. The Implementing Rules of Regulation on the Administration of Health in Public Places made by Ministry of Health on March 1, 1991 forbad smoking in around 16 types of public places.The Law on Tobacco Monopoly made by the Standing Committee of National People’s Congress on June 29, 1991 is a law mainly intending to protect the monopoly of tobacco production and sale, but the law also includes an article on tobacco control which stipulates that “the state and society shall intensify the publicity of and education in the fact that smoking is hazardous to health, forbid or restrict smoking on public traffic vehicles and in public places, dissuade teenagers and youngsters from smoking, and forbid primary school pupils and middle school students from smoking.” This article is still the most authoritative provision on smoking ban in China today. Besides, there have beensome other national laws and regulations forbidding smoking in some public places ever since. For instance, the Law on the Protection of Minors in 1991 forbids smoking in primary and middle schools and any other places where minors gather for activities. The Regulation on the Administration of Business Sites of Internet Access Servicesalso forbids smoking in internet café. Nevertheless, there is still no comprehensive national law or regulation banning smokingin China. Most comprehensive smoke-freelawmaking has taken place in Chinese cities so far.

 

There have been two waves of smoke-free legislation in Chinese cities. The first wave emerged in 1990s after the Law on Tobacco Monopoly and Implementing Rules of Regulation on the Administration of Health in Public Places were enacted in 1991.Suzhou, a city in Jiangsu Province, took the lead amongChinese cities in adopting a smoking bancalled Several Provisions on Forbidding Smoking in Public Places in Downtown Areas in 1993.Other large and medium-sized Chinese cities soon followed suit. By October 2006, 154 cities in 337 prefecture or higher level cities in China had promulgated smoking bans, capturing 45.7% of all such cities2. Besides, almost all provincial capital cities and municipalities directly under the central government have passed smoking bans except Taiyuan, the capital city of Shanxi Province in mainland China.

 

The second wave of smoke-free legislation is closely related to the entry into effect of FCTC in China. Smoke-free legislation has gained momentum since FCTC took effect on Sept. 1, 2006. Unlike the smoke-free legislation before 2006 which usually was done behind closed doors, smoke-free legislation in Chinese cities after 2006 has become a part of larger smoke-freelawmaking movement around the world. Since FCTC was passed in 2003, 180 countries have signed on to FCTC. Most European and American countries and a considerable number of Asian, African and Pacific countries have passed or revised smoke-free laws according to FCTC3.FCTC and foreign experience have played more and more important roles in facilitating smoke-free legislation in Chinese cities. Since 2006, provincial capital cities and municipalities directly under the central government in mainland China such asBeijing(2008),Yinchuan(2008),Shanghai(2009),Hangzhou(2009),Guangzhou(2010),Harbin(2011),Tianjin(2012),Lanzhou(2013),Xining(2014) and Fuzhou(2015)have all passed or revised their smoking bans. Some other large and medium-sized cities such as Shenzhen(2013)and Qingdao(2013)also updated their smoking bans. Moreover, there is a growing trend among Chinese Cities to update their smoking bans at a quicker pace. For instance, Beijing overhauled its smoking ban once again in 2014 afterit was updated in 2008.In 2016, Shanghai also improved its 2009 smoking ban in order tobetter protect the general public.

 

There are three features for the smoke-free legislation in mainland Chinese cities since 2006. Firstly, FCTC begins to play an increasing role in smoke-free legislation in China. Most Chinese cities aim to extend smoking bans to more public places according to FCTC. Moreover, the Guidelines for Implementation of FCTC passed by the Conference of the Parties also become a common source for reference for legislatures in Chinese citiesin terms of smoke-free legislation and law enforcement. Secondly, NGOs, both from home and abroad, have played an important role in facilitating smoke-free legislation in Chinese cities. Tobacco control is usually regarded as an issue of public health with less political sensitivity in China, so it is not difficult for NGOs to take part in policy-making process of the government. International NGOs such as theCampaign for Smoke-free Kids, the International Union against Tuberculosis and Lung Disease and Bill & Melinda Gates Foundation are very active in funding tobacco control programs of local governments and NGOs in mainland China. Domestic NGOs such as theChinese Association on Tobacco Control and the ThinkTank Research Center for Health Development are extraordinarily active in tobacco control advocacy, taking part in smoke-free legislation and supervising law enforcement on tobacco control in China. It is fair to say that NGOs have played a role in almost all the policy and law making process in mainland China since 2006. Thirdly, a lot of Chinese cities are quite good at taking advantage of major public events to promote smoke-free lawmaking. The 2008 smoking ban in Beijing was mainly motivated by the Olympic Games held in the city in that year. Smoking ban in Guangzhou in 2010 was introduced to prepare for the coming Asian Games in Guangzhou. It was also the World Expo to be held in Shanghai in 2010 that prompted Shanghai authorities to adoptthe smoking ban in 2009.In November 15, 2016, the ninth Global Conference on Health Promotion was held in Shanghai, and this event has spuredthe Shanghai Municipal Government totighten its smoking ban further right before it took place. Compared with the old smoking ban, the new one in Shanghai gets much closer towards comprehensive smoke-free standards set by FCTC. In the context of China, it is wise for the cities to make use of major public events to promote smoke-free lawmaking, since such doing not only can help improve the public image of the cities and gain support from both governments and the general public, but also can be helpful to reinforce publicity and enforcement of smoking bans.

 

15.3 Progresses and limitations of smoke-freelawmaking in Chinese Cities

 

Since 2006, more and more Chinese cities have made efforts to issue or revise their smoking bans and uplift the smoke-free standards according to FCTC and domestic campaign goals on tobacco control. Tremendous progresseshave been made in smoke-free legislation ever since.

 

The most remarkable progress since 2006 is that more and more public places have become smoke-free. According to FCTC and its Guidelines for Implementation on Article 8, all state parties are required to provide for protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places. No designated smoking rooms or areas should be permitted in order to create a 100% smoke-free environment. WHO classifies public places into eight measurable types, i.e. health-care facilities, educational facilities except universities, universities, government facilities, indoor offices, public transport, restaurants, and pubs and bars. Only those laws that prohibit smoking in all eight types of public places can be properly called “comprehensive smoke-free laws”. Public Health (Tobacco) (Amendment) Act 2004 in Ireland was the first comprehensive smoke-free national law in the world.Later on, more countries including theUK, Australia, Canada, New Zealand, Turkey, and Spain also passed comprehensive smoke-free legislation. By the end of 2014, about 43 countries in the world reached the comprehensive smoke-free standards set by the WHO. There are much more countries parts of which have reached such standards. The United States of America is just a case in point. The USA is not a smoke-free country yet, but there are considerable states and cities in the USAhave enacted comprehensive smoke-free laws and regulations.

 

Before 2006, there were no smoking bans in Chinese cities that were fully in line with or even got close to the comprehensive smoke-free standards of FCTC. Most Cities at that time forbade smoking only in some limited public places. Few cities prohibited smoking in indoor offices, government facilities and universities, and almost all cities permitted smoking in designated smoking rooms or areas in public places like restaurants or bars. What’s more, there was no strict regulation on the establishment of designated smoking rooms or areas, which made public places with designated smoking rooms or areas almost impossible to protect the public from exposure to tobacco smoke.

 

The quickest response to FCTC in China was from Hong Kongafter 2006. In December 2006, the revised Hong Kong Smoking Ordinance banned smoking in most public places except bars, bathhouses, night clubs, massage establishments and mahjong rooms in a club. On July 1, 2009 when the immunity period for such public places like bars was over,Hong Kong became the first city in China and East Asia as well to be comprehensively smoke-free. Later on, somecities in mainland such asShanghai, Hangzhou and Guangzhou also started their process of new smoke-free legislation. The new smoking bans in these cities began to ban smoking in government facilities, universities and indoor offices to some extent and allow much less public places to have designated smoking rooms and areas. More importantly,smoking bans in some cities in mainland China eventually got close to or even reached the comprehensive smoke-free standards of FCTC after 2011.Harbin Regulation on the Prevention of Hazards of Secondhand Tobacco Smoke in 2011 provides for the first time that most public places are expected tobe smoke-free and no smoking rooms or smoking areas are permitted. The only exception is that “parts of indoor places in hotels and restaurants can be designated as smoking floors or private dining rooms in a limited period which is to be determined by the city government”, but “these places should be smoke-free after the period terminates.”Harbin smoking ban in 2011 was the first of its kind in mainland China which got close to standards of FCTC. The revised Regulation on Smoking Control in Shenzhen Special Economic Zone in 2013 also bans smoking in almost all indoor public places, indoor workplaces and public transport except for some leisure and recreation places like bars, ball rooms, and massage rooms.Smoking is permitted in designated smoking rooms or areas of such exceptional places in the transitional period. When the transitional period expires on December 31, 2016,Shenzhen will be a totally smoke-free city. Moreover, the revised Beijing Regulation on Smoking Control in 2014 bans smoking in all indoor public places, indoor workplaces and public transport without any exception, which makes it the first comprehensive smoke-free law fully in line with FCTC in mainland China.

 

Considerable progress also has been made in term of enforcement of smoking bans in Chinese cities apart from the increasingly expanding smoke-free public places. It had been a longstanding problem for Chinese cities in implementing smoking bans before 2006. Most cities lacked of enough political will to implement smoking bans which were regarded to a large extent as declaratory and educational. Under such a circumstance, it was not strange to find such a weird phenomenon that few cities had taken law enforcement seriouslydespite the fact thatthey had showed enthusiasm in making smoking bans.The fact that even not a single fine ticket had been issued in more than ten years by Shenzhen4, Nanning5, Hefei6and Harbin7authorities according to their smoking bans in 1990s was a case in point.Some cities like Xiamen only enforced the smoking bans in a short time right after they were enacted8.Some cities such as Wuxi did implement the smoking ban, but only on an occasional basis. The number of inspection of smoke-free places in Wuxi was very limited, and the punishment was too light to be mentioned if there was any9. The lack of effective law enforcement led to low compliance of smoking bans in most Chinese cities and weak confidence of the general publicon implementation of smoking bans10.

 

Such scenariohas been changed to some extent since 2006, although it is still a problem for some cities. Smoking bans in cities such asHangzhou, Shanghai, Harbin, Shenzhen and Beijing have been enforced on a regular basis, which means that smoke bans havetruly begun to playa substantive role in protecting the public from hazards of tobacco smoke in public places. Among all cities in mainland China, Shenzhen and Beijing are particularly worth mentioning in terms of law enforcement. In less than one year of implementation of the new smoke-free regulation, Shenzhen fined more than 9000 individuals who defied the smoking ban, and the total amount of fine reached RMB 440,000 yuan, a figure far more than that in Shanghai and Hangzhou every year11. Beijing was even more extraordinary in term of law enforcement. It imposed fines on 376 premises and 1331 individuals and the total amount of fine reached RMB 1.05 million yuan in the first 9 months of implementation since June201412. Compared with the records of their own past and other cities in mainland China, both Shenzhen and Beijing have shown unprecedented efforts to implement the smoking bans.

 

Nevertheless, we have to admit that smoke-free legislation in cities in mainland China is still subject to some limitations in spite of the obvious progresses. First of all, only a few cities such asBeijing, Shenzhen and Harbin get close to or reach the comprehensive smoke-free standards set up by theWHO. Designated smoking rooms or smoking areas are still permitted in many public places by smoke-free regulations in most cities, which also pose a great challenge for these cities to enforce smoking bans effectively. Secondly, the longstanding issue of law enforcement is still a big problem for quite a lot of cities. Enforcement in cities such asYinchuan and Lanzhou is still so weak that the general public can hardly feel the benefit of such smoking bans. Thirdly, the effect of implementation of smoking bans is not satisfactory and the compliance rate is quite low in some cities due to weak enforcement, especially when it is compared with that in developed countries and regions. Generally speaking, the implementation of smoke-free laws is very effective in most developed countries and regions. For instance, the average compliance rate of smoking ban reached 94% in Ireland after the smoking ban in 2004 was implemented for one year13. In Ontario province of Canada, the compliance rate even reached 99% after one year of implementation of the smoking ban in 200614. The compliance rate of restaurants and bars in New York City also reached as high as 97% after one year’s implementation of smoking ban15, and the compliance rate of restaurants in New South Wales in Australia was 100% in the first six weeks of implementation of smoke-free law16. However, the compliance rate in cities in mainland China can’t be comparable to those in developed countries and regions. It is also the case even for those Chinese cities with relatively rigorous law enforcement. For instance, a survey conducted 5 years after Shanghai Regulation on Smoking Control in Public Places in 2009 took effect showed that although 95.2% citizens approved of the smoking ban, only 26% citizens thought the effect of implementation of the regulation was satisfactory and 36.7% citizens thought loose enforcement was to be blamed for such a situation17. Another survey conducted one year after Beijing Regulation on Smoking Control took effect also showed that despite unprecedented enforcement of law by the authorities, smoking still can be observed in 19% of the restaurants, and only 16.28% of the restaurants were found to intervene when they noticed smokers18. Weak enforcement and unsatisfactory effect of implementation of smoke-free bans in some cities has undermined to an extent the confidence of the public in Chinese cities and the country at large in promoting smoke-free bans.

 

15.4 The prospect and challenge of smoke-free lawmaking in future

 

Since no national comprehensive smoke-free law is in place, the smoke-free legislation in cities plays a leading role in promoting the national smoking ban in China. The smoke-free legislation in different cities has,to a large extent,enhanced the awareness of the public on tobacco hazards over the years, and the experiences and lessons accumulated on the part of cities on lawmaking and law enforcementalso have laid a solid foundation for future legislation nationwide. Anyway, no smoke-free legislation in cities can take the place of a national smoking ban. After all, although there are more and more cities making smoke-free regulations in China since 2006, only a few large cities have done so fully in line with FCTC, which means the public still can’t be fully protected from the harm of secondhand tobacco smoke in those cities where no strict smoking ban was in place. So in a country like China with a unitary system, a national smoke-free law is strongly needed in order to provide full protection for all residents in cities. 

 

According to FCTC and its Guidelines for Implementation on Article 8, “each Party should strive to provide universal protection within five years of the WHO Framework Convention’s entry into force for that Party”,which means that China should have adopted comprehensive smoking ban and provided universal protection for the public before January 9, 2011. But unfortunately, China has failed to do so till now. The Twelfth Five-Year Plan Outline on National Economic and Social Development in China published in March, 2011 by the Chinese Government stipulates that “smoking ban in public places shall be implemented”. The National Plan on Tobacco Control (2012-2015)issued by the Chinese Government in March2011 also reiterates that “smoking ban in public places shall be implemented”. But the task had not been accomplished by the time of writing of this chapter. China thus not only lags behind most of the developed countries, but also lags behind some major developing countries in terms of smoke-free lawmaking. In five BRICS countries, China is the only country that hasno comprehensive national smoking ban in place.

 

Nevertheless, it’s undeniable that the process of national smoke-free lawmaking in China is accelerating. In late 2013, in response to a letter to the top Chinese leader by some prominent experts in medicine and public health urging government officials take the lead in controlling tobacco, the central government of China issued the Notice on Some Items Related to Leaders Who Should Take the Lead in not Smokingin Public Places. The Notice demands “leaders at various levels should fully understand the meaning of taking the lead in not smoking in public places, take the lead in abiding by smoking bans in public places, and uphold the authority of laws and regulations with their own real actions.”We can’t expect the Notice too much in urging the leaders to comply with smoking bans in the absence of a national smoking ban. Nevertheless, considering it’s the first time for the central government of China to issue a notice calling on leaders at various levels to commit themselves to tobacco control, it can play a role in enhancing the awareness of government officials on tobacco control and promoting lawmaking in this respect in context of China.

 

Despite being late, national smoking ban has been set in the legislation agenda of State Council of China.On November 24, 2014, the Draft Regulation on Smoking Control in Public Places was published for public comment in internet by the Legal Office of State Council.The draft regulation fully conformed to FCTC, and China would be 100% smoke-free if it could be passed. But later development turned out to be over-optimistic for tobacco control advocates. In April 2016, it was reported that the Chinese Government had decided to pass the Regulation before the Ninth Global Conference on Health Promotion held in Shanghai in November 2016, and the current draft regulation considered by State Council had regressed considerably from the original one.

 

There are two key defects in current draft regulation. Firstly, indoor workplaces are no longer 100% smoke-free and smoking ban only applies to the“areas for public use” in workplaces. Secondly, smoking will be permitted in designated smoking rooms and areas in restaurants, recreational premises, hotels and indoor airport terminals. Permitting smoking in areas not for public use in workplaces means that those office rooms in government facilities, enterprises, companies and social organizations used by one person will not be smoke-free. Since it is hard to isolate such office rooms from other parts of office, people in workplaces are inevitably subject to hazards of tobacco smoke. Moreover, the provision that only demands “areas for public use” in workplaces be smoke-free is politically questionable since it implies that the “leaders” who usually enjoy separate rooms in offices have the privilege to smoke in Chinese context. The provisions permitting smoking in designated smoking rooms and areas in restaurants, recreational premises, hotels and indoor airport terminalsalso mean that the public in those public places can’t be protected from the hazards of secondhand tobacco smoke. The Guidelines for Implementation on Article 8 of FCTC stipulate that adequate evidence has shown that “there is no safe level of exposure to tobacco smoke”, and “approaches other than 100% smoke free environments, including ventilation, air filtration and the use of designated smoking areas (whether with separate ventilation systems or not), have repeatedly been shown to be ineffective.” The permission of setting up smoking rooms in public places not only can’t protect people from secondhand tobacco smoke, but also considerably increases the economic cost of the premises and the cost of enforcement of smoking bans as well. It is a big challenge for any country to enforce vigorously the provisions on the establishment of smoking rooms. That’s why the activists and NGOs on tobacco control in China as well as the WHO regard the current draft regulation as a big step backwards from the original stance of the Chinese Government on tobacco control19.

 

It is not surprising that the Chinese Government oscillates on the issue of tobacco control in Chinese context. Tobacco industry has been one of the most important sources of national revenue over the years. Profits and tax from tobacco industryoccupy a considerable percentage of the revenue of China, although there is a general trend that the percentage is declining gradually. Profits and tax from tobacco industry contributed 11.5% of national revenue in 1996. The number in 2011 was 6% and it was 7% in 2015. From this fact, we can see that not only Chinese people but also the Chinese Government has to fight against its tobacco addiction.Such fight will be even more difficult under the shadow of economic turndown trend in China inthe years to come.

 

Corresponding to heavy addiction of the Chinese Government on tobacco, the tobacco industry enjoys extraordinary legal and political status in China. Tobacco is a monopoly industry guaranteed by law in China.Law on Tobacco Monopoly in 1991 stipulates that “this Law is enacted with a view to exercising tobacco monopoly administration, organizing the production and management of tobacco monopoly commodities in a planned way, improving the quality of tobacco products, safeguarding consumers’ interests and ensuring the national revenue”. Such provision means tobacco industry is monopolized by the state itself with a view to “ensuring the national revenue”. That’s why the tobacco industry can always glorify its act of manufacturing and promoting tobacco products in China in the name of safeguarding national interest and patriotism, and not surprisingly, the Chinese Government also always buy such nonsense.

 

One of the biggest features of tobacco monopoly system established by Law on Tobacco Monopoly is that tobacco enterprises are also government agencies. This feature makes it possible for tobacco companies to take part in almost all policy-making and lawmaking process in the name of state agencies. In 2007, the Chinese Government established the Inter-ministry Steering Committee on the Fulfillment of FCTCas required by article 5.2 of FCTC. The National Bureau on Tobacco Monopoly, also named China National Tobacco Corporation, is one of the most influential state agenciesin the 8 ministries composing the Steering Committee.The National Bureau on Tobacco Monopoly representing tobacco industry not only has the right to participate in almost all the policy-making process on tobacco control in China, but also has right to send its staff as members of the Chinese delegation to take part in the Parties Conference of FCTC. Article 5.3 of FCTC provides that “in setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.” The blatant act of tobacco industry in China taking part in policy-making on tobacco control obviously contravenes this article. But no attempt has been made on the part of the Chinese Government to prevent tobacco industry from interfering in policy-making process on tobacco control in China so far. The special legal and political status of tobacco industry makes it always has a powerful influence on policy-making on tobacco control in China. The inside information shows that theapparent reversal of the Draft Regulation on Smoking Control in Public Places on nonsmoking places was caused to a large extent by strong opposition of the National Bureau on Tobacco Monopoly. It is not the first time for the tobacco industry to intervene in tobacco control policy-making in China, nor will it be the last one. Under strong influence of tobacco industry, the Charity Law passed in March 2016 failed to ban all tobacco sponsorship as required by FCTC and NGOs on tobacco control, China thus lost its best legislation window to introduce a comprehensive ban on tobacco sponsorship as required by FCTC. By the same token, we can safely expect that the adoption of large picture health warnings on the package of tobacco products, one of the most effective measures to control tobacco suggested by FCTC and its Guidelines for Implementation, will be apparently as far off as ever in China.

 

15.5Conclusion

 

Smoke-free legislation in Chinese cities has become prosperous since 1991.China’s entry into FCTC in 2006 stimulated another wave of smoke-free lawmaking in Chinese cities. More and more smoking bans in Chinese cities have been put in place according to many of the comprehensive smoke-free standards set by FCTC in terms of smoke-free public places since 2006; cities that fully conform to FCTCstandards have also emerged in China. Moreover, many Chinese cities have made considerable progress in respect of law enforcement since 2006. National smoking ban has been set in the legislation agenda of State Council. But from the fact that draft national smoking ban has stepped backwards due to intervention from the tobacco industry, we are not optimistic that China will become completely smoke-free in the near future. The special legal and political status enjoyed by the tobacco industry and heavy tobacco addiction on the part of the Chinese Government make the policy-making process on tobacco control vulnerable to intervention from the tobacco industry, and the political will of the Chinese Government can easily vacillate on tobacco control. From this point of view, the challenge will still be enormous in terms of smoke-free lawmaking and law enforcement in future China.

 

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原载韩笋生 林文棋主编,《健康的未来城市》(Healthy Future Cities),中国建筑工业出版社2018年版,第15章.