Alcohol Advertising: A Tale of Quantity and Quality

On 30 November 2023 the Scottish Government published an analysis of the responses to its controversial consultation on proposed prohibitions around the advertising of alcohol.

The report can be found here. It was prepared by Griesbach & Associates, a research consultancy service who have form in providing consultation analysis for the Scottish Government.

Government has already decided on a direction of travel

The report includes a Ministerial Foreword, from Elena Whitham MSP who declares:

“It is clear that further engagement is needed, to ensure that future proposals have adequately taken account of the range of views on this matter. To that end, in early 2024 the Scottish Government will undertake targeted stakeholder engagement on alcohol marketing, to better understand the concerns raised by business stakeholders on this matter. I am committed to working with stakeholders on the impact and the implementation of proposals, and this collaborative approach will enable us to refine and enhance our proposals, ensuring that they’re well informed, deliverable and achieve our aim of reducing alcohol harms. The Scottish Government will then seek to undertake a further public consultation in 2024 on a narrower range of proposals, following the planned engagement with stakeholders in early 2024.”

So here we have official confirmation there is to be a second consultation; which will run at some point in 2024. That will no doubt require further analysis of responses, and then, at some further juncture, one assumes a Bill will be forthcoming.

There is here, for me, an admission of mis-step in the original approach. I was vocal in my criticism that Government allowed the consultation to be engineered, and steered, in a silo. That error appears to be gently conceded here.

A Stark Summary

Here are some key numbers from the Executive Summary:

• There were 2993 responses. Although the report doesn’t confirm this, I understand this to be one the highest yields to a Scottish Government consultation since Holyrood came into being. Of these, the report says there were 1985 individual responses, 423 responses from organisations, and 585 “campaign” responses which it says were organised by CAMRA (542) and the SBPA (81).
• 70% or more opposed nearly all of the specific proposals set out in the consultation.
• 77% opposed a comprehensive package of restrictions.

Who Responded?

Here is an extract from the report showing the different types of organisations (as opposed to individuals) which responded.

For transparency, I should note that my firm, TLT LLP, was the only law firm to respond and is one of the 8 respondents under the “Other Organisation Types”. One of the emotive aspects of the consultation was that it requested respondents to declare links to the alcohol industry. The Government was later required to confirm that industry responses would not be treated with any difference or weighting to responses from others. In the result, 22% of respondents said they had direct links, 13% said indirect links, and 65% of respondents said they had no links to the alcohol industry.

Specific Proposals and their responses

Here is a very quick headline summary of the responses to a few of the key proposals:

• Sports Sponsorship: 77% of respondents against a ban; 21% agreed with a ban
• Events Sponsorship: 81% of respondents said there should be no ban on alcohol sponsoring events like music and cultural events; whilst 17% agreed
• Prohibition on adverts in public places:75% against a ban, 22% for.
• Restriction of Alcohol displays in shops: 76% against, 21% for.
• Structural Separation ie “shop within a shop”: 76% against, 19% for
• Banning alcohol branded merchandise: 82% against, 15% for.
• Restrictions should extend to No/Lo products: 78% against, 18% for.

A Shot across the Bows?

What I think is important to note from the Griesbach report is that they spend some time in each of the discreet areas to outline that responses from all sides appear informed; justification for views is offered. Those who responded in outcry and disappointment at the approach of the consultation did not do so merely on emotion or self-preservation, although some made their feelings very clear (eg, on the ban on branded merchandise the report says: “respondents frequently expressed their views in strong language saying that the proposal was ‘ridiculous’, ‘laughable’ or ‘preposterous’.”)

In fact, the report does an excellent job of highlighting that responses from this clear majority were cultured, engaged, and able to offer probative critique. Here are some examples:

• On sport sponsorship: responses from sporting bodies provided evidence of an inverse relationship between advertising spend and alcohol harm, citing studies.
• On event sponsorship: “organisers of large-scale arts and music events, those representing museum and galleries, organisations responsible for the care of heritage sites, and funders of the arts sector in Scotland often provided long and detailed accounts of why they were opposed.”
• On event sponsorship: evidence was submitted to the effect that the public were in favour of alcohol brands supporting culture and heritage events
• On event sponsorship: evidential comparisons were drawn by respondents to the issues around public funding for example with France, Ireland and Norway. They demonstrated that the Scottish Government was not prepared to fund the arts to the same level; and a ban on support from alcohol brands would result in closure, unemployment, and impact the next generation of artists and musicians.
• On a ban on public advertising: respondents made strong points that there had been no attempt made to understand the impact of existing regulation or assess the impact on new and small businesses.
• On a ban on public advertising: numerous practical examples were provided highlighting how unworkable the proposal would be such as liveries and cross-border travel, costs to business in replacing existing external apparatus, cost to local authorities in loss of billboard revenue, and so on.
• On “in shop” bans: research evidence was cited on the likelihood of young people being influenced at home, as opposed to by seeing brands on a shelf.
• On “in shop” bans: respondents highlighted a large number of existing arrangements none of which had been properly recognised or the impact of which analysed in the consultation: CAPS, Challenge 25, local licensing and so on.
• On window display bans: respondents highlighting the real consequences for staff and public safety as well as the impact on customer experience and administrative burden on licensing boards as display changes would require licensing approval.
• On branded merchandise: respondents criticised the alleged evidential basis for the ban – “The evidence quoted in relation to young people is questionable. In particular, the evidence for the use of branded merchandise among 11- to 19-year-olds is largely based on the wearing of replica football club shirts featuring an alcohol sponsor.”
• On No/Lo: “respondents also argued that (the presentation of) the evidence in the consultation paper in relation to NoLo products is misleading and incorrect. It relies on the use of non-peer reviewed studies, including those carried out by campaign groups.”

The volume of opposition to the proposals can only be described as significant; it is a clear and robust majority. I tend to think that Ministers realised pretty early on that the framing of the consultation was too agenda-driven, too single-minded. It is telling that there was no BRIA; and it is disappointing that the consultation appears not to have had the benefit of being sense-checked by departments outside of Health.

Looking at the Griesbach report, it is not just the quantity but the quality of responses from people who opposed the proposed prohibitions which I hope will remind our policy-makers and legislators that, when it comes to alcohol, the only good silos are the ones in which the grain is stored.