Good and bad points of the Alcohol (Scotland) Act 2010, in force this month

Saturday 1 October saw the coming into force of the Alcohol etc (Scotland) Act 2010. Any legislation must be judged against its stated purpose. As the long title gives no real clues, we have to look further, to politicians’ stated aims, to discover its raison d’être.

The start is not promising. Section 1 is a sunset clause, intended to placate opponents of minimum pricing. It seems a tad superfluous when the clauses of the bill, to which it was intended to apply, have been removed. Section 3, changing the rules regarding the timing of variation of pricing of drinks, is welcome; however, it corrected an obvious howler in the previous legislation, so no prizes there. From 1 October you can change the prices of certain drinks at the start of any working day, provided you retain those prices for 72 hours. Under the old law, any price change meant that no other drink prices could be changed until that 72 hour period had elapsed, a nightmare for retailers.

Promotion sense, and non-sense

The rationale for restrictions on drinks promotions is easier to understand – much more likely to attack “Scotland’s bevvy culture”. So promotions such as 3 for 2, buy 7 for the price of 6, or 20% off a dozen bottles, are all outlawed. If a single bottle of wine is for sale at £6, three bottles of that wine must cost not less than £18. Wine merchants who rely on such practices will have to change their ways. A few months ago, I asked an Oddbins manager how they were going to cope. The response was that “head office would probably think of something” – such attention to detail may not have been unconnected to the subsequent administration.

What is surprising is that the rules are incredibly easy to get round. The restriction on discounts for multi-buys applies only if a single unit of the product in question is on sale. A 500ml can of lager is regarded as a separate product from a 440ml can of the same lager. So while your normal selling price of the 500ml can might be, say, £1, if you do not offer these for sale as single units, there is nothing to stop you charging £4.80 for 6, or £9 for 12. I’m sure I’m not the only person who had to read the law more than once (with a certain degree of disbelief) before the full implications became clear. An odd dilution of a potentially powerful tool.

The rules about where you can store your promotional items (which may depend on whether they are for sale or not) are obscure. Where you may display promotional material may depend on luck. For example, if there is a window within one of your authorised alcohol display areas, you may have graphics on it which can be read from outside, but if the window is elsewhere you can’t. What is or is not promotional material for the purposes of the Act may depend on whether it relates “only or primarily to alcohol”, whatever that means.

No promotions are to be permitted within 200 metres of the boundary of the premises as shown on the layout plan. We are promised amending legislation to allow small shops to distribute flyers to near neighbours. There is guidance, which is in the main fairly sensible; however, the person who suggested that a delivery van would have to be unloaded 200 metres away if it happened to have a drinks company ad on it really does not inhabit the real world.

Logic of the law?

Most sensible licensees have for some time had age verification policies (e.g. “Challenge 21”). These are now compulsory for everyone, the requirement being to verify the age of everyone who appears to be less than 25. I believe we can expect a new round of tougher test purchasing. At least one can see the reason for that measure. The logic behind other parts of this Act is less obvious.

It was a criticism of the draftsman of the 2005 Act that he or she clearly had no experience of licensing law in practice. Sadly, he or she doesn’t seem to have learned much in the last five years.

The Author
Tom Johnston, Young & Partners LLP, Dunfermline and Glasgow
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