The recent Scottish Government consultation on alcohol misuse was met with mixed reactions by the licensed trade. While most sectors of the industry recognise that alcohol does bring its problems, there are disputes as to how they should be tackled. The new report, "Changing Scotland's Relationship with Alcohol: A Framework for Action", published on 2 March and the subsequent reforms proposed in the Criminal Justice and Licensing (Scotland) Bill, promise to be no less controversial.

The Framework

The Report estimates that alcohol misuse costs Scotland £2.25 billion every year and – with alcohol being much more affordable now than 20 years ago and a high proportion of men and women regularly drinking over the recommended weekly guidelines – stresses that alcohol misuse is becoming more of a mainstream problem. Consequently, action is to be targeted at the population as a whole rather than simply those with chronic alcohol problems. The overall aim is to reduce the total amount of alcohol consumed in Scotland and change the way it is consumed, thereby re-balancing the Scots' relationship with alcohol.

The Scottish Government highlighted four key areas which are to be the subject of sustained action:

  • reduced alcohol consumption;
  • supporting families and communities;
  • positive public attitudes, positive choices; and
  • improved treatment and support.

In order to address these, a raft of proposals has been outlined. Some proposals have already been addressed in the Criminal Justice and Licensing (Scotland) Bill whilst others are to be the subject of further consultation before being introduced as legislation.

Some of the most important proposals for the licensed trade are outlined below.

Promotions

As a response to the Scottish Government's concerns about alcohol being consumed at home (and so in a less "controlled" drinking environment than pubs and bars etc.), the measures which were included in the 2005 Licensing (Scotland) Act in relation to on-sales premises, are now being extended to off-sales premises as well.

This means that:

  • Off-sales premises will no longer be able to supply free alcohol on the purchase of one or more of the same or other product. This measure is targeted at multi-sale discounts such as 3 for 2, or Buy One Get One Free type offers.
  • Similarly, off-sales premises will not be permitted to supply alcohol at a reduced price on purchase of the same or another product. This will affect other multi-buy offers such as 2 for £10 deals.
  • Alcohol may not be sold as a loss leader.

Clearly this is an area of concern for off-sales operators, as promotions on alcoholic beverages have traditionally been a big driver for sales and are known to attract customers to stores. The impact of these measures will only become clear once their final form has been decided. A regulatory impact assessment is to be carried out in consultation with the Scottish Government and Alcohol Industry Partnership and other key stakeholders before legislation is put before Parliament in relation to these proposals.

Minimum pricing

With studies showing a direct link between price, consumption of alcohol and harm, the Report expresses concern about heavy discounting of alcohol. Although the Scottish Government does recognise the role of alcohol promotions in attracting customers to off-sale premises, it considers that alcohol is not an ordinary commodity and therefore should not be treated as such – discounting leading to increased consumption and therefore harm.

The introduction of minimum pricing and the prohibition of selling alcohol as a loss leader are designed to put an end to heavy discounting of alcohol. These are measures which, according to the Report, will target the more "harmful drinkers" given that cheaper products, such as strong cider and beer, are most often consumed by those drinkers. Research has shown that moderate drinkers will be less impacted by such proposals given that they tend to purchase more expensive products, and in any case, drink less. It has also been noted that the increased price paid by consumers should compensate the trade for the decreased volume of sales.

Of course, an obvious problem raised by this is how to prevent people doing their shopping in England as has happened in a similar way with the now infamous "booze cruises" to Calais. The Scottish Government reports that it will continue to discuss this issue – remote sales in particular – with Westminster but it is difficult to see how it could be prevented unless the UK Government adopts similar proposals on pricing/promotions.

It also remains to be seen what level the minimum unit price would be set at.

Drinks measures for on-sales

The Report proposes that on-sale premises must be required to offer 125ml glasses of wine and 25ml measures of spirits as standard. A customer who simply asks for "a glass of wine" would therefore be given 125ml unless they specifically request a large glass. Since the 2005 Act prohibits "up selling", the Government believes this will lead to people drinking less.

At present, on-sales premises can only offer 25ml or 35ml measures of spirits, not both. The Government proposes that both should be available with the 25 ml measure being standard, but as this is a reserved matter, Westminster retains ultimate control here.

Minimum age for off-sales purchases

Plans to increase the legal minimum age for purchase of alcohol in off-sales to 21 have been scrapped due to widespread opposition from a number of the groups which responded to the consultation, including youth groups and the licensed trade.

The Scottish Government still supports the principles behind this proposal, however, and so a duty is to be imposed on Licensing Boards to include a "detrimental impact statement" within their licensing policy statements. This will consider whether off-sales to people under the age of 21 is having a detrimental impact (i.e. an adverse effect on one of the licensing objectives) in a particular area or locality, and the Police and/or Local Licensing Forum can request the Local Authority to consider reviewing this statement at any time. Pilot schemes have already been running in Cupar, Stenhousemuir and Armadale where the age for off-sales has been raised to 21 on Fridays and Saturdays, and the Report indicates that these have had a positive impact in terms of a significant reduction in offending and antisocial behaviour.

A power to vary premises licence conditions without a hearing has also been introduced to the Bill in order to allow Boards to impose conditions on any, or all, of the licensed premises within its area. Although aimed at the age restriction, the Scottish Ministers may also prescribe other matters which may be covered by this section.

It will no doubt be of concern to the licensed trade that certain premises can be singled out and have conditions imposed on them that do not affect others within the locality, and that without the chance to have a hearing on the matter. Even more worryingly, it seems that there is currently no apparent right of appeal against a condition imposed in this way.

Antisocial Behaviour

Licensing Boards are to consider antisocial behaviour reports made by the police as part of the representations when determining a premises licence application. This will identify all cases of antisocial behaviour identified as having taken place on, or in the vicinity of, the premises.

Social responsibility

A legislative power to apply a social responsibility fee is to be established. While the Report suggests that small businesses where the sale of alcohol was incidental to their main business would not be targeted, the Bill applies this levy to all premises and occasional licence holders, as well as those with a street trader's, public entertainment or late hours catering licence.

According to the Report, the purpose of the fee is to contribute to expenditure incurred or to be incurred by any local authority in furtherance of the licensing objectives, and which the authority considers necessary or desirable to remedy or mitigate any adverse impact on the licensing objectives attributable to the operation of licence holders. The details will appear in regulations at a later date but licence holders will understandably be concerned that these powers are, on the face of it, so wide.

Marketing

Continuing its policy that alcohol should not be treated in the same way as any other ordinary commodity, the display of marketing material relating to alcohol is to be limited to one of the two permitted alcohol display areas in off-sales premises under the 2005 Act.

No marketing material referring to any price other than the price at which the product is currently being sold is to be allowed (e.g. no "Was £6.99, now £3.99").

The detail of these measures is to be set out in draft regulations and the Scottish Alcohol Industry Partnership and other stakeholders will have the opportunity to comment on those. The Report also calls on retailers and producers to develop and agree a Code of Practice for Promotions with the Scottish Government in order to build on the regulatory action already taken by them.

Although mention is made in the Report of TV/Radio advertising, this is a matter reserved to Westminister. The Scottish Government plans to urge the UK Government to develop a UK approach to advertising with a view to protecting children from exposure to alcohol advertising – suggesting in particular a ban on the advertising of alcohol prior to 9pm.

Alcohol only checkouts and Minimum Age for Checkout Operators

In a similar vein to the proposals for raising the minimum age, the Scottish Government's proposals for alcohol only checkouts, and imposing a minimum age on checkout operators were not well received by small retailers and youth groups in particular, and therefore these proposals have been suspended. This is in hope of support from producers and retailers of alcohol for the Code of Practice for Promotions referred to above, and the indication is that if support is not forthcoming, the position may be reviewed.

Changing Scotland's drinking culture

The Scottish Government has committed itself to changing the Scottish binge drinking culture and is certainly proposing fairly fundamental reforms to the liquor licensing laws. It seems likely that many of the issues discussed in the Report will be contained in the proposed Health Bill which the Government intends to introduce into the Scottish Parliament later this year.

If introduced, these changes will, in addition to those already in force as a result of the Licensing (Scotland) Act 2005, place much greater control both on the price at which alcohol is sold, and also give Licensing Boards and police wider discretion over whether to grant the licence and/or what conditions to impose on licenses, bearing in mind the local social conditions related to alcohol. The licensed trade will need to ensure that they are up to speed with the legislation, and make a number of changes to the way they market and sell alcohol at the moment, in order to avoid falling foul of the law.

Click to read the Scottish Government's Report: Changing Scotland's Reletionship with Alcohol: A Framework for Action