Prohibition massage business 12th - 26th March 2020

The Directorate of Health has today decided that the massage business is prohibited because of the risk of infection. Prohibition applies from 12 March at. 18.00 Thursday 26 March. The decision is taken on the basis of Infection Control Act § 4.1 which mainly deals with activities and businesses that collect more people.

Norwegian Massage Association supports measures to limit the risk of infection in Norway. However, it is debatable whether massage business poses a real increased risk, and if the ban is an effective measure. Massage is a 1-to-1 service or gather more people. Moreover, it is possible to organize massage so that it does not cause an increased risk of respiratory droplets.

Our 800 members are losing 10 to 20 million by closing the business for two weeks, and Norwegian Massage Association considers it its duty to protect its members against negative external influences. We committed therefore law firm Hjort to make a quick legal assessment of the ban.

The assessment (see below) says that it is possible to attack the ban, but it probably will not succeed. Either way, the ban entered into force and it is will endanger fines and imprisonment to break it.

Our recommendation is therefore that our members follow the CMO determination.

Here is the law firm Hjort's assessment of the CMO prohibition of massage:

Hey, Kjetil,

Showing the nice phone call a short while ago. Our initial assessment of the issues you traveled follows below.

Our overall conclusion is that the decision possibly could be attacked because it does not distinguish between large and small businesses, since it is not necessarily so that businesses offering massage "gather more people." At the same time it is both legal and reputational challenges to attack the decision, which means that we would not recommend it without a further assessment of the case first. With reference to your statement that the decision taken at. 18:00 today, it is not practicable to postpone implementation, suspensive effect or otherwise to halt the decision before it is implemented. Businesses that do not comply with the decision risking fines and imprisonment.

As mentioned over the phone, have it because of the very short time frame has not been possible to examine the questions fully. We therefore make the reservation that it is going to be shades that are not captured by the statement below.

  1. Is CMO resolution valid?

The decision to prohibit / closures, among other businesses offering massage, issued pursuant to the Communicable Diseases Act § 4-1 second paragraph. According to this provision can Directorate of Health "make decisions as mentioned in the first paragraph" by "a serious outbreak of a communicable disease, and when it is essential to put measures in place quickly to prevent transmission of the disease." These terms are quite clearly met by the ongoing Covid-19 pandemic.

Decisions as mentioned in the first paragraph including "closure of businesses collect more people", cf. Control Act § 4-1 subsection b. Provision also discloses the following examples of such operations, "for example. kindergartens, schools, swimming pools, airports, shops, hotels and other businesses and jobs. " This provision can therefore include any activities that "gathers more people."

The law defines not, however, what lies in "more people". After an ordinary dictionary definition it should indicate "many people", ie nothing more than a collection of a small number of people. Furthermore it does not appear explicitly what is "collect", if it indicates that more people will be present at the same time or if it is enough that there is a flow of several people. Purpose of the provision, to prevent one serious communicable disease, suggests that the latter is covered when throughput of more people are likely to cause a risk of spreading infection. Similarly indicates the purpose that the provision does not require an assessment of how many people actually "collected" in a concrete business, but the question is rather whether the business is likely to gather more people.

Massage is given 1 to 1 and businesses offering massage can be a sole proprietorship or otherwise organized so that there are never more than two persons present in the premises at the same time. In light of the above, it can be argued that the CMO's decision also includes businesses that do not "gather more people" and therefore is invalid for such businesses. Meanwhile, the Directorate of Health / council given very wide powers in the Communicable Diseases Act, and the provision in § 4-1 is both broad and vague in scope. The Directorate of Health is given general authority to, among other things to give decisions for the whole country or parts of the country. Such decisions will necessarily be "coarse" and the purpose of the provision is to put measures in place quickly to prevent transmission of the disease. This suggests that there may not be required that the decision to shut down for Diseases Control Act § 4-1 second paragraph ref. Subsection b distinguishes between businesses' size and organization.

Based on the above it is not possible to make a clear conclusion whether the decision is valid, but given the purpose of the provision and the extraordinary cases are supposed to be used for, and applied to in this case, we believe that it will be difficult to challenge the decision on legal basis, but also with regard to the possible reputation consequences it may have for the industry.

  1. Can the decision be attacked?

The provision of the Communicable Diseases Control Act § 8-3 shows only municipal or intercommunal decisions. CMO's decision may generally be appealed to the Ministry of Health under the provisions of the Public Administration. The deadline for appealing Administration Act § 29 is three weeks from the date of notification of the decision is received by the party concerned.

A decision will generally effect even if it is appealed. If the Directorate or the Ministry decides, the decision may postpone implementation until the appeal deadline has expired or the appeal has been decided, cf.. Administration Act § 42. In this case, such a postponement of the implementation is not appropriate given that the decision takes effect if only briefly.

  1. What are the consequences if the decision is not fulfilled?

If a business is required to be closed for Diseases Control Act § 4-1 first paragraph a does not close, the Directorate of Health / The municipal authority to ensure implementation of the measure, cf. Control Act § 4-1 third paragraph. In practice, this could mean that the police (or other health authorities / municipal council appoints) will be sent to the business to ensure that it stays closed.

Violation of the order is punishable by a fine or imprisonment not exceeding two years, or up to 4 years if the violation loss of life or serious injury to body or health as a result, ref. Control Act § 8.1. The latter will be relevant if someone becomes infected during visits to a business that has not complied with the decision about the closure.

Hjort DA
Akersg. 51, 0105 Oslo
+47 22 47 18 00