Ensuring alcoholic drinks promotions in Scotland are ‘responsible’

It is the licence holder who is at risk of regulatory action, not the customer, meaning it is vital that businesses selling alcoholic beverages in Scotland are aware of and abide by the alcohol promotion rules. In particular, sales must be in compliance with minimum unit pricing (MUP), which means alcohol cannot be sold at a price per unit that is less than the statutory MUP.

Those responsible for ensuring compliance with the MUP are the premises licence holder as well as premises managers, and staff working on the licensed premises. Failure to comply with the MUP could jeopardise the licence and therefore stop the business from being able to sell alcohol entirely.

Regulatory framework and alcohol promotion rules in Scotland

The Alcohol (Minimum Pricing) Scotland Act (4 pages / 204 KB) was passed by the Scottish Government in May 2012, however its entry into force was delayed by a legal challenge brought by the Scottish Whisky Association and other European wine and spirits trade bodies. The legislation was ultimately cleared by the UK Supreme Court in November 2017, taking effect in May 2018.

Relevant conditions for drinks promotions are set out in the Alcohol etc (Scotland) Act 2010 (15 pages / 499 KB). The guidance for alcohol promotions noted in Schedule 3, paragraphs 6A and 7A which cover pricing, both MUP and price variations. Paragraph 8 covering “irresponsible promotion”.

Paragraph 6A advises that alcohol must not be sold on the premises below the minimum price. That is the case even where the alcohol is provided together with other products or services, for example, with a meal. It is also the case that where more than one alcoholic drink (whether of the same kind or not) is provided in premises, separate from food, they can only be sold for the sum total of each of their minimum prices – meaning there must not be any promotion on their own, such as buy one get one half price.

If the price of any alcohol to be consumed on the premises is varied, the variation can only commence at the beginning of the licensed hours. No other variation can be brought in less than 72 hours since the previous variation came into effect, even if the variation is in relation to a different kind of alcohol.

When will an alcoholic drink promotion be considered irresponsible?

A drinks promotion in Scotland will be considered irresponsible in a number of situations. The promotion will be deemed irresponsible where it specifically relates to an alcoholic drink likely to appeal largely to persons under the age of 18.

The promotion will also be considered irresponsible if it involves the supply of an alcoholic drink free of charge or at a reduced price on the purchase of one or more drinks or if it involves the supply free of charge or at a reduced price of one or more extra measures of an alcoholic drink on the purchase of one or more measures of the drink. Sales of unlimited amounts of alcohol for a fixed charge will also be considered irresponsible in Scotland as well as promotions encouraging, or seeking to encourage, a person to buy or consume a larger measure of alcohol than the customer had likely intended to consume.

Promotions cannot be based on the strength of alcohol or be seen to encourage drinking alcohol quickly, such as drinking games resulting in customers drinking alcohol in a time limit or “downing a drink”. It is considered irresponsible for businesses to offer alcohol as a reward or prize unless the alcohol is in a sealed container and consumed off the premises.

What can make an alcoholic drinks promotion responsible?

Not all promotions are “irresponsible.” Operators can still have promotions where alcohol is included as part of a package or meal deal. Firms selling alcohol and offering a discount can use vouchers. However, the total price of the items on promotion must not be less than the minimum unit price – which is currently 50p. The MUP is to be raised by 30% to 65p, subject to parliamentary approval.

For meal deals, the cost of the main course must be more than the cost of the alcohol promotion so for example a 12.5% bottle of wine has a MUP of £4.69 and therefore the meal deal served with the wine must cost at least £4.69.

Any discount should not be dependent on the purchase of alcohol. This means alcohol should not be advertised or given as reward or prize to encourage customers to drink more. Complimentary drinks can be given, however, and the MUP does not apply to these. For example, complimentary drinks may be given to a customer who has to wait longer than anticipated for their table or because there was a delay in their food being served.

 Staff discounts can also be applied to alcohol, so long as the discount does not mean the staff purchase price falls below the MUP. Damaged stock can also be sold at a cheaper rate, again, as long as this price does not undercut the relevant MUP.

Customers can purchase alcoholic drinks using loyalty vouchers or reward schemes such as a points card, as those act like cash, even if they would then take the cost of the alcohol below the MUP.

Clarity is important when it comes to responsible alcohol promotions

Breach of any alcohol promotion conditions is a criminal offence and can result in police involvement. If an irresponsible promotion is suspected, a Licensing Standards Officer could intervene with a warning or a section 14 notice requiring that the breach be remedied; or could make a premises licence review application following the issue of a s14 notice.

Firms facing any uncertainty over the conditions should seek legal advice to ensure all promotions or future promotions are in line with the rules.