On 17 November 2022 the Scottish Government released a new consultation on proposed changes to introduce prohibitions around alcohol advertising and promotions. The powers which this consultation discusses, if enacted, would likely be the most significant restrictions ever to have been placed on the alcohol and retail industries in Scotland. The level of prohibition proposed goes further than anything ever seen before, and is more restrictive than even the temperance legislation of the late 19th and early 20th centuries.
The announcement of this consultation was expected by those of us who follow these things, although the precise proposals are a shock. At the very heart of this is a presumption that something must be done around the advertisement and promotion of alcohol, particularly in relation to how it may affect vulnerable persons such as those with alcohol addition issues, and how it may affect children and young people.
This all goes back to the Scottish Government’s Alcohol Framework 2018: Preventing Harm, which, amongst a suite of other suggestions, which the public health actors refer to as “best buys”, included the following two points:
- To consult on marketing restrictions to protect children and young people from alcohol marketing.
- To press the UK Government to improve measures to protect children and young people from exposure to alcohol marketing.
Further work was undertaken by certain stakeholders in 2019 but for obvious reasons the consultation was delayed following the onset of the pandemic. Now launched, the Ministerial foreword makes the following claims:
“It is likely that alcohol marketing influences heavy drinkers and acts as an incentive to drink“.
“[Prohibition] will reduce the potential triggering effect that alcohol can have on heavy drinkers and those in recovery and treatment“
However, although there is a focus on harmful drinkers, and on young people, the consultation also acknowledges that this is a “whole population” approach. In other words, even though it may be argued that some individuals can be negatively affected by alcohol marketing and promotions, and even though those individuals will be a very small number of persons, we all need to take the medicine collectively, at a societal/macro level.
Hard-working alcohol producers will be vexed, I would suggest, to see the following comment:
“Without branding and other marketing strategies, alcohol products in each beverage sub-sector are essentially variations of the same thing“.
This is an overt effort to eradicate the diversity and personality of individual alcohol products; to reduce them to a denominator common to those who are so opposed to it; that is, to see alcohol only as a harmful commodity, a vice. This one sentence discounts centuries of craft, effort and enterprise. This one sentence discounts the joy in sampling one malt whisky over another and sharing that experience with a friend. These, of course, are positive traits and experiences, which explains their absence.
This all springs from the idea, put forward by anti-alcohol campaigners, that alcohol is inherently bad; and we all need to be protected from it – every one of us. In turn, the producers and retailers of the product are also painted by those proponents as bad faith actors, to the extent that there have been calls by some groups to exclude the alcohol industry from this consultation altogether.
It is difficult to conclude, looking at the levels of prohibition proposed here, other than that Government has apparently been captured by such thinking on this issue. Despite the focus on children and vulnerable groups they say: “the proposed actions [in the consultation] are intended to have an impact on everyone in Scotland“, notwithstanding they also say: “There is limited academic evidence on the impact alcohol marketing has on the adult population“. It is not enough that there are two key groups who, it is argued, need protecting. Here we are told we all need protecting, whether there is any evidence to that effect or not.
The consultation is influenced by a growing trend in policy-making: reliance on what is called “lived experience”. With lived-experience, the emotive, very personal comments of individuals who may have a negative experience of alcohol are put forward as the basis, the rationale, for policy change. It is in hearing the views of individuals, much of which has been gathered through arranged events and interviews, that we are offered a moral platform to justify the proposals. Just ahead of each of the consultation questions, you will find “lived experience” quotes, providing a emotive drive and narrative against which the reader is invited to frame their analysis. No similar quotes are presented to offer any contrary view.
The consultation is peppered with links to a multitude of research papers all of which, when taken together, paint this not as a consultation at all, but a fait-accompli: marketing and advertising of alcohol is an inherently bad thing, but especially for persons with harmful consumption patterns, and especially for children and young people. But again there is no contrary view put forward; no wider perspectives are explored or even suggested.
Before looking at the proposed restrictions, it is worth noting that the consultation does come out with at least one concession, which is that the Scottish Government can only put forward policy which is within the powers of the Scottish Parliament. It will be interesting to see if any responses to the consultation suggest elements of the proposals are ultra vires.
That being said, I think the following sentence summarises neatly where the Scottish Government wants to take all of this:
“It is crucial that any potential restrictions to reduce the volume of alcohol marketing are as comprehensive as possible.”
No holds barred, then. Let us examine the proposals.
The first part of consultation asks us whether we should prohibit all alcohol sports sponsorship in Scotland. This flows from recommendations, laid out in terms, from the Young Scot Health Panel and Children’s Parliament which include:
- Prohibiting alcohol branding on merchandise (i.e. shirt-sponsorship) and banning wider sponsorship (i.e. on boarding/hoarding)
- “Accredit” venues which are more family friendly, where they have agreed to restrict alcohol – even going so far as to suggest venues should place a limit on the number of drinks people can buy and ensuring live TV does not show people drinking in the crowds
Many sporting authorities have already responded with extreme alarm over these proposals. No doubt they are making those views known in responses to the consultation. What is frustrating is that there is no evidence of any attempt to take those views as part of a more balanced exercise to understand the nuance before now, in the ‘formulation’ stage of the policy proposals.
Where are the “lived experience” quotes from representatives of the community sports team, in praise of support they receive from the local distillery? Where are the efforts to understand how alcohol businesses support local communities such as through sporting groups? Whilst I have no doubt such views will result from the public consultation, the perception created is adversarial, requiring those affected to be on the defensive (pardon the sporting pun).
This part of consultation starts by telling us there is no evidence at all as to whether sponsorship of “events” (by which they mean music, cultural events and so on as opposed to sporting events) by alcohol has negative outcomes. Nevertheless, unhindered by any expressed desire to wish to proceed with probative and proportionate policy-making, they plough on and ask whether there should be a prohibition on alcohol sponsoring all events across Scotland. This, if enacted, would end alcohol sponsorship of musical or cultural festivals as well as local community led events. Heaven knows how you organise a beer festival.
The fait-accompli element of all of this is writ-large in the following paragraph: “The Scottish Government acknowledge it would be a significant undertaking if alcohol sponsorship was prohibited for all events, without an adequate lead-in time. This takes account of the commercial nature of sponsorship contracts whereby these are made for a number of years. We welcome views on whether a lead-in time would be appropriate as well as how, and for how long, this might operate.”
Perhaps the most incredible proposal within this consultation is the suggestion that there should be a complete ban on any and all promotion/advertising of alcohol in public places. This notion is suggested not necessarily, it would seem, as an intrinsic goal per se, but also on the basis that it might be quite difficult to create a more nuanced law. Consider the following paragraph:
“Given the difficulties around defining places as places children and young people frequent, as well as the likely impact of alcohol marketing on adults too, a prohibition of alcohol advertising in public spaces may be the best course of action.”
I find that to be a remarkable statement. Here we have the Government saying that, because it might be too complex to prohibit alcohol marketing under defined circumstances, they should just go ahead and ban it altogether. We are looking at the white-washing of the alcohol industry across the country. We are looking at alcohol being treated as a substance which must be hidden from plain sight from the entire population. And we are looking at this happening (a) without any probative evidential base, (b) because it is the easier option legislatively, and (c) absent any analysis of the positive impact that the alcohol industry and alcohol has for individuals, local communities and society and absent any analysis of the impact these proposals would have on those affected.
Notwithstanding the acceptance of “difficulties” here, they go on to propose examples of places and environments where advertising and promotions might be banned, such as near schools or nurseries, on public transport or bus stops and train stations, and even leisure centres.
In-store Alcohol Marketing
This section is a good example of how parts of the consultation are framed through lived experience. Here we are presented with the following two lived experience quotes:
- “When you go to the till, you pass the big alcohol bit” (9-11 year old)
- “Alcohol is right at the counter… it’s a trigger for me, so I have to avoid it. I don’t go there. If I haven’t got milk, I have to wait until I go to the [big] shops.” (Lisa, 1 year sober)
We are being encouraged to see these proposals subjectively, through the eyes of these two contributors. We are invited, therefore, to see the proposals not as they might affect the wider population, and not with any causal evidence, and certainly not as how the proposals might affect the alcohol industry or the people who work in, or whose jobs are supported by that industry.
We are instead invited to look at these proposals only through an extremely narrow lens, the lens of harm experienced by a few individuals. I make no point as to the validity of the experiences the contributors have had; but I do ask whether testimony from a small clutch of individuals, all of which is geared towards the same pre-disposition (in this case negative experiences of alcohol marketing), is a sure-footing for policy, and in turn law. Is introducing population wide restrictions based on the negative experiences of a small cohort proportionate?
One of the proposals in this section is that alcohol should not advertised or even seen in window displays at all, so that no alcohol can be visible from outside the shop. I find this sort of proposal to be a remarkable blind-spot when it comes to the history of licensing rules and regulations. It takes us backwards to a period of time where it is assumed there is an inherently corruptive element to simply seeing alcohol in a window display. Does this not add a layer of secretive mystique, countering the Government’s stated aim to make alcohol less attractive?
There are many businesses who specialise in selling alcohol. If these proposals are taken forward you are looking at a blackout of store fronts of premises such as dedicated off-sales, or retail units for local distilleries and breweries. Craft beer shops will be under rules akin to the restrictions on licensed sex shops, but with less colourful wording on the black vinyl stretching across the windows.
Oh, and good luck with the local brewery setting up a stall in the local farmer’s market.
They even take us into territory where alcohol must be seen in the same context as tobacco:
“Where alcohol is displayed behind the checkout this could be required to be in a closed cupboard, like tobacco products.”
I am almost surprised not to see a reference to plain packaging here (although note the comments below on “content of advertisements”).
They also propose that aisle-end displays be banned, and that “mixed” aisles be restricted, so that alcohol is not in the same aisle as some other product. All of this suggests that the Scottish Government seems to have satisfied itself that there is evidence of unfettered patterns of impulse-buying.
They go further, and explore the “shop within a shop” idea and ask:
“Do you think we should consider structural separation of alcohol in Scotland to reduce the visibility of alcohol in off-trade settings (e.g. supermarkets)?“
There is no suggestion as to how any such restriction would be imposed on existing retailers. There are huge licensing implications here, of course. Any change to alcohol displays would mean a variation of the premises licence, meaning new architects plans, and might also mean a loss of product range, and physical works having to be carried out.
What of premises whose entire premises is one big alcohol display, like a working distillery with a retail shop or visitors centre?
Brand-sharing and merchandise
Not content with proposing a complete ban on all alcohol advertising in all public spaces, and the shuttering of shop-fronts, they go further, and suggest that there should be a ban on the sale of all alcohol-branded merchandise altogether. No more hats or mugs. No more t-shirts. No more craft brewery hoodies. In the context of this consultation, these have become “walking billboards“. And as for ‘brand-sharing, no more bourbon flavoured BBQ sauce, no more liqueur flavoured ice cream. The Scottish Government go further still, and present a case that even advertising for alcohol-free products should be banned as they are, in essence, “gateway” brands to expose people to the alcoholic variants, because of the use of the same names and logos:
“This demonstrates the need to carefully consider restricting these other distinctive and identifiable elements associated with the alcohol brand, in addition to restricting use of the alcohol brand name.“
If you have been reading closely so far, you may agree with me that what we are looking at here, when you combine these proposals, is the almost complete eradication of the public presence of alcohol. It is no surprise to see, therefore, a proposal that alcohol advertising in all newspapers and magazines should simply be banned altogether, although, to be fair, they do say:
“some consideration would need to be given to specialist consumer publications, trade press and industry-focused publications.”
Concerned with alcohol advertising appearing online and through social media channels, a number of further questions are posed. This will also make for concerning reading for alcohol producers and retailers who use websites and social media channels to engage with their customers and sell their products. Take a look at the following questions:
- Do you think we should restrict alcohol branded social media channels and websites in Scotland?
- Do you think we should restrict paid alcohol advertising online in Scotland?
- Do you think we should restrict alcohol companies from sharing promotional content on social media (e.g. filters, videos or posts) – whether this is produced by them or by consumers?
TV and Radio advertising
Here again the consultation documents tells us that people watch TV and may therefore be exposed to alcohol advertising. That being so, restrictions should be considered. Here are some example questions:
- Do you think we should explore prohibiting alcohol advertising on television and radio completely?
- Do you think we should introduce a watershed for alcohol advertising on TV and radio (e.g. like Ireland), and if so how would this work?
- Do you think alcohol advertising should be restricted in cinemas?
Restrictions on content of advertisements
Not content with removing alcohol from visible public society, if any residual advertising may remain, the Government wants this to be controlled so that only state-sanctioned attributes can be referred to, such as geographical origin and certain factual criteria. This can be summarised in the following sentence:
“By removing the attractiveness of alcohol in the advertising we begin to change the culture around alcohol.”
This links to the earlier observation I made about the notion that alcohol is intrinsically negative, and cannot be allowed personality. This is how we reach the perspective that “alcohol brands portraying drinking alcohol as a fun, sociable and a community activity which makes people feel good and equals happiness” is a reality which must be challenged, thus discounting the joy which the product brings to the moderate majority, thus discounting the health benefits of such joy.
Towards the end of the consultation the Government suggests that a new regulator may have to be set up to deal with the enforcement of all of this. Who is going to pay for that? The industry? The tax-payer? What might this new regulator look like? A Scottish Alcohol Advertising Standards Commission? Is this the body which will issue the “accreditations” suggested earlier; as well as taking action to ban adverts or shutter window displays? All of this remains to be seen.
I have been practising alcohol related law in Scotland over some years, in my role as a licensing lawyer representing the trade, and I have written on this topic widely. I have often been a “critical friend” of the Scottish Government, having sat on many working groups and bodies on licensing reform, and must also concede I have been withering in my analysis of the efficacy of some of the licensing law which the Parliament has produced. That being said, even I am amazed at just how far these new proposals go, and the absence of balance.
The entire consultation is driven by what I am left to describe as a moral position that alcohol is inherently bad, a negative aspect of society from which everyone needs to be protected and shielded. It is not enough that consumption of alcohol (whether harmful or not) must be reduced, we cannot even be trusted to see it; and wider civil society must be encumbered with disproportionate prohibition, instead of the proportionate targeting and delivery of support to those very few who need it.
It is an entirely one-sided consultation. It reads like it was written by anti-alcohol pressure groups. It makes no effort at all to consider, present or even acknowledge the positives of responsible alcohol retail and consumption. It makes no attempt to explore the positive economic contributions that the alcohol industry makes through promotion and advertising, or the social cohesion and enjoyment that responsible alcohol retail and consumption can bring. It makes no effort to analyse what the impact of these proposals would be on the alcohol industry, or the other connected industries and communities and families supported by that industry.
How many businesses could survive in such a hostile environment for the industry with no means to promote or sell their products? What will that mean for diversity of products? How many jobs would this impact? Would this have a disproportionate effect on smaller, independent businesses such as craft breweries or local convenience stores?
It also makes no real effort to analyse the hard work put into responsible retailing and responsible drinks advertising by the industry, and there is little here as to how all of this might cut across efforts by other agencies such as the Portman Group or the ASA.
There is no doubt at all that some people within Scottish society have a problematic relationship with alcohol. I doubt anyone would seriously argue a Government should not take steps to help those who are harmed, or who are harming others. But the suggestion that the response should be a wholesale eradication of visible alcohol from public society is in short, a prohibitionist’s charter.
It is incumbent on the Scottish Government to lift its head from the playbook of those who agitate for that prohibition. Consider the balance in the following quote from the Court of Session:
“The industries which the petitioners represent include companies which make a substantial contribution to the national economy and their products when used responsibly contribute to human happiness. But the abuse of alcoholic drinks and the harm which the abusers cause to themselves and others is a matter of general public concern both in this jurisdiction and throughout the United Kingdom.” (Lord Hodge, in the famous minimum pricing judicial review  CSOH 156.)
You can engage with the consultation online here.
The deadline for responses is 9 March 2023.