Noise about reform is hardly a tonic

16 November, 2007

Recent attention in licensing circles has switched to Scotland, where a new Licensing Act received the Royal Assent in December 2005 and is due to be brought into effect gradually from next February until 2009 - giving plenty of time, so it is said, to avoid the problems that the quick transition brought to the English process.

But it also provides a longer period for speculation and political soundbites on alcohol controls, as was proved recently by Scottish justice minister Kenny

MacAskill. He used the Alcohol Focus conference in September to announce a number of proposals to curb marketing and promotion of drinks, many aimed fairly and squarely at the off-trade.

Of course, politicians say a great deal about a subject in a speech that does not eventually find its way into statute. Shout first and ask questions afterwards seems to be the motto for most of them. But there is no doubt that many people south of the border will be watching with interest to see what the SNP eventually comes up with in terms of drink sales legislation.

Health hazard

One of the key differences between the two licensing acts is in the scope of the objectives. In Scotland, the fourth of these is "protecting and improving public health", which is significantly absent from the English version. But it allowed MacAskill to link alcohol legislation and regulation more closely with general health issues in his speech and to suggest quite strongly that the merchandising of alcohol was tempting people to buy more than they should, because it was sold alongside other products deemed to be less dangerous. So he announced that there would be regulations requiring premises to have separate display areas for alcohol and that there should be no cross-merchandising. He used as examples beer beside the barbecue charcoal, wine at the pizza counter, gin and tonic in the chiller cabinet alongside the lunchtime sandwiches.

He also attacked "irresponsible" drinks promotions, examples of which were 12 bottles of wine for the price of 10 or "buy two, get one free" offers. He said that a case of 24 cans should cost the same

as buying 24 individual cans. Regulations would ban such promotions in all types of outlet, including dedicated off-licences.

Eastern Bloc

The other area that is producing controversy throughout the country is deep discounting. MacAskill attacked this on health grounds; but clearly independent retailers take a different view, seeing it as unfair competition by the supermarkets. However, this is where the legal advisers may step in as the Scottish regulations are discussed.

There is a major problem with regard to competition law in price fixing, and the new licensing legislation itself does not appear to give scope for the imposition of conditions on pricing as part of the licensing process.

The problem of excessive consumption in Scotland has been held up as a reason for taking a tougher stance there, rather than in the rest of the country. But the risk is in penalising all drinkers because of the perceived behaviour of a minority.

The speech clearly did not differentiate between the two consumer sectors, the implication being that controls were needed across the board because of the actions of a minority.

It will remain to be seen whether there will be any scope for "responsible" drinks promotions, or whether the controls of drinks marketing will be so tight that the product will have to be retailed exactly as it stands, rather reminiscent of Eastern Bloc liquor stores with their cages, alarms and separate cash counters.

Campaign beacon

But this area of legislation is a minefield. Although tobacco can be held up as an example of where successive restrictions were imposed on health grounds, even there it was not possible to set price controls, except through punitive taxation. Alcohol is now such an established part of the retail mix in supermarkets and stores that any controls will have to be carefully considered, so as to comply with European legislation and to preserve a level playing field for retailers. Separate displays for alcohol, for example, and even a "shop within a shop" have been debated in cases in England, and may require primary legislation.

This is an area where the licensed trade must be more proactive than it was, certainly in England, during the passage of the original Licensing Bill.

With current anti-alcohol moves south of the border, MacAskill's speech may act as a beacon for a similar campaign to curb alcohol sales throughout the rest of the country.

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