The Minimum Pricing Multiverse: Why Facts Matter

Background

Minimum unit pricing, described by some as a “world leading” policy, was introduced by the Scottish Government in May 2018, following a significant legal challenge from some parts of the alcohol industry. It created what is sometimes called a “floor price” for alcohol. It is a condition of every alcohol licence in Scotland that alcohol cannot be sold below a certain amount; breach of this is a criminal offence, and could result in the licence being revoked. It was a significant, interventionist policy: certainly bold, and certainly controversial. One of the reasons the courts ultimately “approved” minimum pricing was that the law had a sunset clause: it would operate for five years, the operation would be assessed, and then Parliament would have to vote on whether to retain the law permanently with regard to that assessment.

I have been asked a number of questions around the policy by clients and other stakeholders in the licensing system. This article attempts to bring together these queries, and to urge stakeholders to consider the relevance of facts.

Uprating the Minimum Price

Why look at all this now? Well, because the Scottish Government has agreed that the level of unit price should be increased, from 50p to 65p, and on 8 February 2024 announced plans to pass secondary legislation to uprate the amount. A draft Order was laid before Parliament on 19 February 2024: The Alcohol (Minimum Price per Unit) (Scotland) Amendment Order 2024. The Order will amend the original Alcohol (Minimum Price per Unit) (Scotland) Order 2018[1] to swap out “50 pence” for “65 pence”.

This decision was announced ahead of Parliament voting on whether the law should be retained at all: it would now take an argument with some degree of invention to imagine the Scottish Parliament will do anything other than “approve” minimum pricing given the SNP and Green coalition have the votes to do so. The mechanism for making the law permanent has also been laid in draft form, before Parliament on the 19 February 2024, under the Alcohol (Minimum Pricing) (Scotland) Act 2012 (Continuation) Order 2024. This is the Order catered for under s.2(2) of the Alcohol (Minimum Pricing) (Scotland) Act 2012, without which the law of minimum pricing will “expire” under the sunset clause. It is anticipated that Parliament will vote to approve this Order, and therefore approve the permanency of minimum pricing, sometime this Spring, and that the new 65p price will go live in September 2024.

Facts Matter

The public have been consistently presented with the proposition that “minimum pricing has saved lives”. This has been repeated by politicians, health experts and others over some time now but particularly in the last few weeks. It is almost as if it has become accepted that this is a material fact through repetition, instead of genuine analysis. The reality, for those who choose to critically examine the Government’s own assessment and studies, is opaque, and in this article I will express why such statements are, for me, something other than factual.

For and Against: not as clear cut as might be thought

Taking a step back for a moment, I think it is important to acknowledge that across the businesses who observe the policy there are mixed views. It is inappropriate to think of minimum pricing as a “them vs us” scenario with health on one side and the alcohol industry on the other. The alcohol industry in Scotland is not a homogenous entity; it is profoundly heterogenous. There is no such thing as “Big Alcohol”. It would be untrue to state that the alcohol industry opposed and continues to oppose minimum pricing. In fact, the alcohol and licensed trades remain split on this point. Significant names such as Tennents, Greene King, and the Scottish Licensed Trade Association all publicly supported it, and again some have come out publicly to declare support for the new rate of 65p this month[2].

The legal challenge[3] surrounding the adoption of minimum pricing led to significant media coverage over many years and the existential concept of the measure has been challenged on a continual basis; debated amongst academics and commentators.

But the variety of views does not just exist amongst the diaspora of the alcohol industry. It is also a policy widely discussed unofficially amongst the licensing community in Scotland and I think it is fair to say it has both supporters and detractors. There is no unanimity.

The same, indeed, might be said for those from the health community: addiction charities such as FAVOR[4] have been outspokenly negative about pursuit of the policy and the impact it has on their service users[5].

The Scottish Government’s own assessments on Public Attitudes also confirm a split in support amongst the general public: a study published in September 2023 indicated 43% of the population was in favour, versus 38% against[6].

Counterfactuals and Factuals

Now in 2024, as we teeter on the brink of the policy being made permanent, my concern with minimum pricing is not necessarily the existential rights and wrongs of the policy itself but that Government seems prepared to overlook the equivocal status of the evidence on which the policy is to be assessed. The evidence is the Public Health Scotland Final Report[7] which details the analysis of a large number of discrete studies which have been conducted over the last five years, the concomitance of which is presented in one over-arching document. Upon publication of this in June 2023, the Government unambiguously declared:

“Scottish Ministers have considered all the information presented in this report and conclude that there is sufficient evidence that Minimum Unit Pricing has achieved its policy aim.”

This is a one-eyed statement to any impartial analysis. When the report was published, the Scottish Government said that the policy had “saved lives”, this notwithstanding that the number of alcohol related deaths had actually risen. In fact, the claim of saving lives emanates from just one of these discrete studies and this was only by comparison to a counterfactual; it was speculation of an alternative reality. The argument here is that it “saved lives” because that the policy had theoretically stopped more deaths from happening: this is not an analysis of reality; but of a theorised world where the rate and rise in England & Wales was used as a barometer. “But for” minimum pricing, it was argued, the rates would have been a lot worse. The “lives saved” are theoretical. Meanwhile, back in the real world, the number of people who have died has risen.

The Scottish Government were later obliged to reconsider their wording following an intervention from the UK Statistics Authority[8]; such hypotheses were merely that; speculation, not material fact. Then the Sunday Times uncovered (in August 2023) interference from Holyrood civil servants to amend some of the wording in the reports in order to create a more favourable impression of the outcomes. For example, where one report had claimed the evidence that minimum pricing had achieved a reduction in consumption was merely “consistent”, civil servants instructed this to be amended to read “strong and consistent”, and that is the wording which is used in the final report.

Despite these discoveries and an acknowledgement that the claim of lives saved is not factual, the phrase “minimum pricing has saved lives” continues to be espoused publicly absent appropriate caveats. It was stated as fact by multiple people giving evidence at the Health, Social Care and Sport Committee on 6 February 2024[9]. Yet this is not a fact: it is an estimate based on modelling of a counterfactual reality. It does us all a disservice not to make this clear in evidence at Parliament.

It is my view that as a matter of law and material fact, the proposition is not evidence based. When it comes down to it, the data that suggests there has been a 13.4% reduction in deaths and 4.1% reduction in hospital admissions is not from the real world: it is a form of well-intentioned clairvoyance. It is the minimum pricing multiverse.

The fact is that in real world deaths have not reduced, they have risen. Hospital admissions have not reduced, they have risen. This is not something to celebrate, but facts matter, or at least, they should matter, in determining such important governmental policy.

What is the True Policy Intention of minimum pricing?

There is also an ebb and flow around the true policy intention. Is minimum pricing a whole population approach, designed to cut down drinking across all of us? Or is it a targeted approach, aiming to intervene in the drinking patterns of the heaviest drinkers and most harmed? Is it both of these things?

When the Scottish Government published its macro-level Alcohol Framework in 2018, minimum pricing was described as having two drivers: the “whole population approach”, and “tackling health inequalities”. This was later confirmed in the Scottish Government Interim Business and Regulatory Impact Assessment published on 20 September 2023, which said:

“The policy aim of MUP is to reduce health harms caused by alcohol consumption by setting a floor price below which alcohol cannot be sold. In particular, it targets a reduction in consumption of alcohol that is considered cheap, relative to its strength. It aims to reduce both the consumption of alcohol at population level and, in particular, among those who drink at hazardous and harmful levels. In doing so, it aims to reduce alcohol related health harms among hazardous and harmful drinkers and contribute to reducing harm at a whole population level.”

I’ll come back to this point, but there is a real thread to pull on here: how can the policy be both holistic (“whole population approach”) and targeted (“tackling health inequalities”)?

Why increase to 65p and not some other number?

Some have asked me why the Government has settled on an increase of 15p, up to 65p. This is the number lobbied for by those in support of alcohol restrictions since at least 2021[10] and certainly throughout the period of the assessment and publication of reports this is the number those stakeholders have persistently put forward. I should declare that I am on record as opposing any increase whilst the “grand experiment” was running. I took the view that the courts had approved the scheme at a certain level and it would be unwise to change it until after a decision had been reached to retain the law[11]. It is interesting to note why the Government did not go higher: why not 70p or 80p for that matter? The Scottish Government said:

“Increasing MUP above 65ppu is recognised as being at too high a level for Scotland. The impact on consumers, dependent drinkers and the market would be very large. It is also likely that the possibility of unintended consequences would be increased, such as potential financial difficulties for dependent drinkers and increase in use of non-beverage alcohol. At these levels, the price floor would begin to impact beyond lower price alcohol products that have been the core target of the policy intent to reduce alcohol that is cheap relative to its strength. The level of interference of 70ppu, 75ppu and 80ppu is, therefore, too high to justify the policy aims despite the greater health benefit that would be achieved.”

Evidence Matters

I will now turn back to the over-arching claim that minimum pricing has worked: this is where we examine the evidence. I have reviewed the key studies which form part of the most important outcomes and areas of assessment in the overall report. When you take some time to examine the results of these studies and really look behind the curtain, the results are at odds with the backdrop of Government and health agency claims of success. Here is my summary of the discrete studies:

• Wyper et al (2023): This is the “counterfactual” study I refer to above and is the only one of all the studies in which it is claimed the policy had a success, here arguing that the policy led to a 13.4% reduction in deaths and a 4.1% reduction in hospital admissions. But these figures do not relate to the real world, where deaths and admissions have increased. These numbers are in fact modelling of an alternative reality, not material fact. In addition, if we take the hospital admissions data and examine the confidence interval, this is -8.3 to 0.3. This is a p Value, or a “probability value” of 0.064. Ask your friendly neighbourhood statistician what they make of the evidential strength of all of this.
• Manca et al (2022a): This study looked at the impact on ambulance callouts and found no evidence of impact.
• Manca et all (2023): This study looked at impact on alcohol dependence and found no evidence of impact.
• So et al (2021): This study looked at attendances at A&E and found no evidence of impact.
• So et al (2021): This study also looked at prevalence of illicit drug use and found no evidence of impact.
• Iconic Consultation (2020): This study looked at the impact on children and young persons drinking behaviours and found: “MUP was not perceived to impact on the alcohol-related behaviour of participants either positively or negatively”.
• Ford et al (2020): This study looked at harms from others to children and young persons and found: “No specific examples were provided by those working with families affected by alcohol use of positive or negative impacts from MUP”.
• Holmes et al (2022): This study looked at the impact on harmful drinkers: “There was no clear evidence found of any change in severity of dependence”.
• Kopasker et al (2022) and Leckcivilize et al (2022): these studies looked at impacts on expenditure on food and found “No evidence of effects on the quantity of food purchased, energy density or diet quality.”
• Krzemieniewska-Nandwani et al (2021): This study examined impact on crime and disorder and found: “Limited evidence of beneficial or detrimental impacts on crime”.
• Dimova et al (2022) and Emslie et al (2023): these two studies looked at homelessness and street drinking and found: “There were some reports of increases in illicit drug use among those already using drugs to supplement alcohol consumption but there were conflicting views on whether this was attributable to MUP. Minimal changes were perceived in terms of theft or begging to acquire alcohol”.
• Francesconi and James (2022); Manca et al (2022b) and Vandoros and Kawachi (2022) all looked at road traffic accidents and the results were inconsistent to say the least. “One paper found no evidence of impact, another paper reported evidence of an increase and a third paper reported evidence of a decrease.”
• Frontier Economics 2019; Frontier Economics 2023: these studies looked at the impact on the drinks industry and found “No evidence that MUP had significantly impacted the performance of the alcoholic drinks industry in Scotland in terms of the key metrics”.
• There are also a clutch of studies (Frontier Economics 2019; Paterson et al (2022); Paterson et al (2023) and Griffith et al (2022), Holmes et al (2022)) which looked at cross border purchasing trends but none of these have any dramatic results: “…no evidence of a substantial  impact on profitability, turnover or employment of retailers in Scotland close to the border”; “…some evidence of cross-border trade, but only on a small scale”.

The real-world studies are striking in how similarly ineffectual one way or the other the policy has been. Yet they have all been set aside by those who say the policy is a success, including the Scottish Government. Why? Why not deal with the totality of the report, with these other studies and facts?

It remains to be seen when the matter is debated in Parliament how the real-world studies will be critiqued or acknowledged, or if the Government will endeavour to focus solely on the single study from the MUP multiverse.

The absence of acknowledgement of the ineffectualness of the policy on real world data is doubly frustrating when Public Health Scotland has been quick to make pronouncements such as “there was no clear evidence of substantial negative impacts on the alcoholic drinks industry, or of social harms at the population level”. This type of commentary confirms, to me at least, that the presentation of the outcomes is overtly selective.

Impact Assessments relative to 65p

I now wish to turn to examine further publications linked primarily to the legislative process to uprate the level to 65p. In laying the secondary legislation (ie the draft 2024 Order I refer to above), the Scottish Government published a suite of “impact assessment” documents on 19 February 2024. These are discreet assessments, separate to the Public Health Scotland assessments and studies I discuss above (though rely heavily on them). My summary of these impact assessments is as follows:

• Business and Regulatory Impact Assessment[12]: this is an extensive document, a significant piece of work by all accounts, coming in at some 174 pages. Some of the detail of this is covered more generally in parts of this article, for example I look at issues such as enforcement, and the relevance of the UK Internal Market Act 2020 later on. At this juncture it is worthwhile focusing on the impact on businesses as in the earlier part of this article I have focused on health and societal impacts. The BRIA concludes there is “no strong evidence of an adverse impact on the alcoholic drinks industry as a whole as a result of MUP.” However, that being said, there is an acknowledgement that the position is nuanced, as there was: “evidence of some producers experiencing lower profits, and some smaller retailers having reduced revenues. Similar results are expected with an updated minimum unit price, with products which experience the greatest price increase expected to experience the greatest reduction in sales”.
• Child Rights and Wellbeing Impact Assessment[13]: there is no evidence of any impact either good or bad in relation to children’s rights and wellbeing. This is perhaps unsurprising given the terms of the related assessments I discuss above, but it is useful to see how this is summarised in this separate impact assessment. The impact assessment does its best to paint the outcomes as impactful, relying on giving examples of “qualitative” evidence, which means viewpoints expressed by individuals as opposed to material fact. Notwithstanding these efforts the assessment contains two key statements which point to the truth of the matter: “It is not possible to say whether children and young people in families affected by alcohol use were positively or negatively affected”, and then “it is the assessment of Scottish  Ministers that the continuation of MUP, and the increase in price to 65ppu, is unlikely to have a significant negative or positive impact on children and young people.”
• Island Communities Impact Assessment[14]: this impact assessment again does not appear to take us anywhere towards any evidential base one way or the other. Consider the following statement: “Whilst there is no specific study relating to the effects of MUP to date within island communities, there is some evidence island communities tend to have slightly lower levels of hazardous and harmful drinking as well as lower mean units of weekly alcohol consumption compared to Scotland as a whole”. The assessment does recognise that some island communities have a higher proportion of employment within the alcohol industry, but instead of any discreet exploration of whether the impact on island-based businesses, they simply point to the wider analysis of the industry “at large”, which for me is a missed opportunity. The assessment also confirms the following: “No evidence was found during the five-year evaluation to show the implementation of MUP at 50ppu has had an effect on the island communities in a way that is significantly different from its effect on the mainland.”
• Fairer Scotland Duty Assessment[15]: this assessment relates to socio-economic impacts. However, the assessment does not actually bring forward any separate analysis on the impact of minimum pricing on deprivation other than extractions from the counter factual modelling study: for example saying that “the greatest estimated reductions in deaths and hospital admissions as a result of MUP were observed in the four most deprived deciles in Scotland”. I do note however that this impact assessment again confirms what is now stated as the twin goals of minimum pricing. It is both a whole population approach, and also a targeted approach: “MUP targets hazardous and harmful drinkers in the most deprived areas.” It is instructive to see the report acknowledge the alcohol harm paradox as follows: “However despite lower levels of hazardous or harmful drinking, those in the most deprived areas are still experiencing higher levels of alcohol harm compared to those living in the least deprived areas. This is known in the public health literature as the alcohol harm paradox, and the reasons for this are not fully understood but there are a number of possibilities.” However, neither this assessment or the wider reports offer any material evidence to how minimum pricing may have impacted on what is known about the alcohol harm paradox. When they refer back to the wider studies, they do acknowledge the inconclusive and contradictory results: “Studies reviewed as part of the MUP evaluation suggested some hazardous or harmful drinkers had reduced their alcohol consumption, while others reported no change to their drinking. There was evidence that some people with alcohol dependence had been unable to reduce their consumption. One evaluation study found no significant change in the proportion of drinkers consuming at harmful levels amongst those in the lowest social grade.” Given the absence of evidence one way or the other in Scotland, the authors fall back to the modelling study, and have to look further afield by linking to a speculative WHO report from 2022, which has a foreword by Nicola Sturgeon in her then capacity as First Minister (on which see below).
• Equality Impact Assessment[16]: this assessment looks at how the uprate in minimum pricing might impact upon persons with a protected characteristic under Equalities legislation. I will summarise the report for each characteristic in turn, but the overall conclusion here seems to be that there is no evidence of any impact one way or another on the policy in terms of protected characteristics:
  • Age: “There is no evidence that MUP has had a differential negative impact on those within a certain age group nor that MUP exacerbates age inequalities”
  • Disability: “There is no direct evidence on the impact MUP may have on disabled people.”
  • Sex: Again there is no material evidence on this. The assessment can only have regard to the modelling study. “There is likely to be a slight differential positive impact on men, who consume more alcohol on average and therefore suffer more from alcohol harms.”
  • Pregancy and Maternity: “Given there is, at a population level, low levels of alcohol consumption amongst pregnant women in Scotland, it is unlikely that continuation of MUP at 65ppu will have a significant impact on this group.”
  • Sexual Orientation: “There is no direct evidence on how those in the LGBTQ+ community have been impacted by MUP.”
  • Gender reassignment: “There is no evidence that the continuation of MUP at 65ppu would have a disproportionate impact on the people who identify as trans.”
  • Race: “There is no evidence of MUP having a negative impact on any racial group.”
  • Religion: “There is no evidence of MUP having a negative impact on any religious group.”

The overall trend across all of these impact assessments is that there is no evidence of any impact one way or another; thus chiming with the totality of the studies under the PHS banner.

Hypothecation and Taxation

Another strand I wish to pull upon is the fact that minimum pricing is not a tax, though it is perhaps misunderstood as such by some. The “additional” money spent by the consumers does not go to the public purse, nor does it go the producer who made the alcohol, it goes to the retailer who has sold it. During the lengthy legal case against the Government pre 2018, it was made clear that the Scottish Government argued for the lawfulness of the policy partly on the basis that their hands were tied in terms of taxation alternatives: alcohol duty is a reserved matter, so that option was not open to them. The Scottish Government has, however, form for running what appeared to be a hypothecated tax: what became known as the “Public Health Supplement”, which was in operation from 2012 to 2015. This was a tax on the largest retailers of alcohol and tobacco products: the supermarkets (though not all supermarkets, only ones selling both alcohol and tobacco).

However, despite the labelling and public messaging over the Supplement, it was never hypothecated and the £95million raised disappeared into the Government’s general coffers with no transparency on how the money was spent. The nearest we got was a statement given on 19 February 2014 from John Swinney in Parliament[17], who said:

“The public health supplement was a temporary three year policy introduced at the spending review 2011 and was estimated at the time to raise an additional £25/35/35 million over 2012-13 to 2014-15. The estimated additional income was factored into the total resources available in spending review 2011 and contributed to the preventative spend measures introduced at that time…As set out at the spending review 2011, the public health supplement is a temporary three year policy. After March 2015 the legislation falls and the supplement no longer applies, so spending plans for 2015-16 were always set taking this into account.”

There is no clear reason I can divine as to why the Supplement was shelved after three years, though an academic study[18] which investigated this point claims it was, in part, down to the negative impact the tax had on relations between Government and business, and they go on to say:

“our analysis suggests the Supplement was not designed in such a way as to stimulate behavioral change among retailers, and that the revenues were not hypothecated for health, but used to address a gap in the Scottish government’s Spending Review proposals. It could therefore be argued (as many of our interviewees did argue) that the presentation of the Supplement as a “public health” measure was misleading.”

The idea of reintroducing this has already been heralded in light of the rise to 65p; the logic being that if retailers are “making extra money” through minimum pricing, it should be taken off them again through a separate tax. It is a dogmatic take, given the rise would be a mandatory licence condition: in putting the price up, retailers are obeying the law; to do otherwise would be a criminal offence under licensing legislation. Separately, given the argument for the increase is based on inflation, is it not also correct to understand that inflation impacts on costs and overheads that retailers have faced since 2018? It is also a novel view given the purpose of minimum pricing is to put people off buying alcohol because it is less affordable: is it not designed to make sales go down, not up?

The truth is that the idea of a new public health levy was already on the cards, having been announced by Shona Robinson MSP in her December 2023 budget[19]. This perhaps telegraphed the February announcements on minimum pricing. It will therefore be interesting to see what form any new levy takes and how it will, if at all, be properly hypothecated and transparent.

Compliance: Enforcement and Sanctions

I ought now to circle back briefly to discuss compliance, enforcement and sanctions. As I say above, the observation of the minimum price is a mandatory condition on every licence in Scotland under the Licensing (Scotland) Act 2005, and if a licence holder were to sell alcohol below the price, they would open themselves to regulatory action under that Act (which ultimately could mean revocation of the licence), whilst also committing a criminal offence under s.1 of the 2005 Act for which the penalty can be a fine up to £20,000 and/or six months imprisonment.

Since minimum pricing became law in 2018, I am struggling to remember any but a very handful of cases where a retailer sold alcohol below the minimum price, and those cases I can recall are from the very early days, and usually down to genuine oversight, e.g. arising from IT systems or simple human error, as opposed to a wilful act. Now in 2024 I am not aware of this being an issue whatsoever, either for Licensing Standards Officers or Police Scotland. I doubt it will be an issue when the price goes to 65p; other than again, perhaps some IT gremlins or glitches.

There is one study within the wider suite of assessments which looks at this: Dickie et al (2019)[20]. These researchers interviewed LSOs, Police Scotland divisional licensing officers and trading standards and in short found: “minimum unit pricing was, in the main, well implemented and compliance among licensed premises was high.” This study was done only one year into the 5 year experiment and I think it would have been interesting to have more of a longitudinal study carried out to determine any trends over that period – but my suspicion is that non-compliance is virtually non-existent save for some blips in the immediate introduction.

The study authors recognise some limitations in their approach: they did not look at, for example, any evidence of whether premises licence reviews had been brought as a result of non-compliance, because that data was too difficult to ascertain with only two licensing authorities having published such detail. They don’t seem to have recognised the role of s.14 of the 2005 Act which allows for “notices” to be issued for non-compliance but given the complexity of the licensing system that ought to be forgiven: however again the study is limited in that is looks at a period of less than one year. In order for analysis of impact on the licensing system to be more meaningful, Public Health Scotland should have commissioned the study to run from 2018 to 2024 and not just 2018 to 2019. However I think the study authors also very fairly note that the licensing system is designed to be one which encourages compliance first and sanctions last: if a retailer is in breach, the likelihood of them being issued a s.14 notice or being brought to review, far less charged by the police, is remote: what happens in the real world is that the friendly neighbourhood LSO will “have a word” and the retailer will comply and that is the end of the matter. Rarely in my experience does it go beyond that.

Best Buys?

One of the driving forces behind all of this is the seemingly dogmatic reliance on what the WHO calls the “best buys”, or what they say is the three key policy levers which might be pulled to deal with alcohol harm. These are sometimes called the “Three A’s”, viz Affordability (Price), Availability, and Attractiveness. But these concepts are artificial constructs within a macrocosm of global public health policy, and I wonder if they need to be revisited or at least critically re-evaulated based on real-world data from specific localities and jurisdictions.

Minimum pricing is an example of a bold policy which costs the Government nothing to implement; but on its own evidence is a policy which has had neutral impact, and on its own statistics deaths have gone up. This is why I think we are starting see some signs of reservation amongst parts of the health community: with so much focus on minimum pricing, other targeted interventions which may in fact address alcohol harm at the local level and impact on real lives and communities, but which might cost the Government money, are left behind.

It seems to me one can discern a shift in the academic health community towards critically analysing whether the other “best buys” are worth their salt. A recent example of this relates to alcohol advertising. Advertising, like price, is a totem; but again the stubborn adherence to this seems to me to be based on dogma, not on probative evidence. Consider the following: in a recent study[21] on advertising as a “best buy” the authors say:

“The available empirical evidence does not support the claim of alcohol marketing bans constituting a best buy for reducing alcohol consumption.”

I was instructed to analyse the evidential basis for the Scottish Government consultation on restricting alcohol advertising for the Scottish Alcohol Industry Partnership and that paper can be accessed here. My conclusions were in short, the same.

It seems to me that the multiple minimum pricing studies I refer to above, based on real world data should also, properly understood, give the academic community some degree of pause as to whether price, in the Scottish example, remains a “best buy”.

The Lawfulness of Minimum Pricing and its Evaluation

I now wish to bring us back to consider the terms against which the policy should be assessed. Remember that the Scottish Government said in 2018 that minimum pricing had two key aims: to reduce alcohol consumption generally in the population, and to tackle the most harmed and affected by health inequalities. Looking at the studies I refer to above, if we examine this through the prism of the whole population approach, the only way the policy can be described as a success is by closing our eyes to all of the real world data and looking only at the single study which looks at alternative reality data.

If we instead examine this through the prism of tackling health inequality and targeting the most harmed, I cannot see any evidence at all of success. In fact, I have noted one study[23], which was not included within the wider report of the Scottish Government, which found that consumption in the 5% heaviest male drinkers actually went up, and that consumption patterns by younger men in deprived areas was unaffected.

This is all incredibly important when we remember what the courts had to say about a policy with two objectives. When we refer back to Scotch Whisky Association and others v Lord Advocate and another, we find that in fact this was a crucial element to the courts determining that the policy was lawful at all: it was only upon clarification from the Scottish Government in court that the primary aim of the policy was tackling health inequalities; that it was targeted towards harmful drinkers, that the courts approved it. Consider the following summary of this point:

“The CJEU also made clear, however, that minimum pricing genuinely pursues a legitimate public health objective, and – as long as the legitimate objective is identified specifically as the reduction in alcohol consumption among heavy drinkers and drinkers with potential alcohol-use disorders – is both appropriate and necessary.”

That statement comes from a 2022 WHO Paper which lobbies for minimum pricing[24]. And yet it is remarkable to recollect the recent amount of focus there has been on the efficacy of minimum pricing in the Scottish experiment being about the whole population approach.

Let us remind ourselves of the specific wording from the courts which clarifies this point (my emphasis):

“A critical issue is, as the Lord Ordinary indicated, whether taxation would achieve the same objectives as minimum pricing. Although not all of the points on which he relied for his conclusion on this issue can still stand, the main point stands, that taxation would impose an unintended and unacceptable burden on sectors of the drinking population, whose drinking habits and health do not represent a significant problem in societal terms in the same way as the drinking habits and health of in particular the deprived, whose use and abuse of cheap alcohol the Scottish Parliament and Government wish to target. In contrast, minimum alcohol pricing will much better target the really problematic drinking to which the Government’s objectives were always directed and the nature of which has become even more clearly identified by the material more recently available, particularly the University of Sheffield’s April 2016 study.”

In order to convince the courts that minimum pricing was lawful, the Scottish Government specifically stated in clarification that the primary goal was not a whole population approach but in fact the targeted approach, and always had been (the petitioners had sought to argue that it was only during the life cycle of the case that the Government had “changed tack” in focusing on the targeted approach, but the court rejected this and agreed that the focus had always been there).

That being the case, surely as a matter of law all parties must accept that it is the achievements against that goal which are “weighted” for the purposes of the Parliamentary assessment as to whether the policy should remain on the statute books?

Consider this important extract from the judgement:

“The system will be experimental, but that is a factor catered for by its provisions for review and “sunset” clause. It is a significant factor in favour of upholding the proposed minimum pricing regime.”

It seems to me that the fact minimum pricing was allowed to go ahead at all was on the basis (a) that the Government clarified to the courts that the primary focus was on “really problematic drinking”, not general consumption; and (b) because it had a safety valve of the trial period to evidence whether that objective had been achieved.

These were the two key reasons to declare the policy lawful.

The UK Internal Market Act 2020

There is a further legal quirk: does the increase in the minimum price have any implications under the UK Internal Market Act 2020? This law did not exist at the time minimum pricing was introduced in 2018, but it does apply now. One would hope that, given the debacle over the Deposit Return Scheme, the Scottish Government has got its ducks in a row. The Scottish Government accepts that the price increase does constitute a “substantive change” for the purposes of s.9 of the 2020 Act. This issue is canvassed in Part 6 of the BRIA[22]. The Scottish Government puts forward a number of reasons why it does not believe the 2020 Act is triggered but I shall summarise this by quoting the following: “it seems unlikely that an adverse market effect will arise but it cannot be discounted on the information available” (my emphasis). It will be interesting indeed should anyone affected by the increase seek to unpick this.

And finally…Post-legislative scrutiny?

As someone who is at the coal face of licensing law in practice, I can say unequivocally that the Government is quick to impose restrictions, and slow to analyse whether they work or not. The sheer volume of licensing law across multiple Acts and secondary legislation is legion: and yet, with the exception of minimum pricing, there has been not a single effort to ascertain the impact of any of it.

I find it incredible that there has been no post-legislative scrutiny by Parliament of the Licensing (Scotland) Act 2005 or any of its myriad amendments given public and parliamentary interest in alcohol harm.

I think it is incumbent upon a prudent legislator to understand what has or has not worked across the existing laws, before adding more.

Only through such scrutiny could gaps or successes be identified. Such scrutiny should, of course, be vested in material fact.

---

[1] SSI 2018/135 (as amended by SSI 2020/81).

[2] https://www.theslta.co.uk/news/scottish-government-announces-retention-of-minimum-unit-pricing-for-alcohol/

[3] Scotch Whisky Association and others v Lord Advocate and another [2017] UKSC 76.

[4] https://www.facesandvoicesofrecoveryuk.org/

[5] See, for example, “Unmasking the Mirage: Evaluating Scotland’s Minimum Pricing Policy for Alcohol”, Annemarie Ward, CEO of FAVOUR, 29 August 2023 (https://www.facesandvoicesofrecoveryuk.org/unmasking-the-mirage-evaluating-scotlands-minimum-pricing-policy-for-alcohol/)

[6] https://www.gov.scot/publications/public-attitudes-minimum-unit-pricing-mup-alcohol-scotland/

[7] https://publichealthscotland.scot/media/20366/evaluating-the-impact-of-minimum-unit-pricing-for-alcohol-in-scotland-final-report.pdf

[8] https://uksa.statisticsauthority.gov.uk/correspondence/response-from-sir-robert-chote-to-sandesh-gulhane-msp-minimum-unit-pricing/

[9] https://www.scottishparliament.tv/meeting/health-social-care-and-sport-committee-february-6-2024

[10] https://www.alcohol-focus-scotland.org.uk/media/440102/joint-afs-shaap-mup-letter-to-minister-of-ph-and-cabsec-health-with-signatories-181121.pdf

[11] https://www.slrmag.co.uk/minimum-unit-pricing-stephen-mcgowan/

[12] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-business-regulatory-impact-assessment/pages/1/

[13] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-stage-2-child-rights-wellbeing-impact-assessment/

[14] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-island-communities-impact-assessment/

[15] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-fairer-scotland-duty-assessment/pages/1/

[16] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-equality-impact-assessment-results/documents/

[17] https://archive2021.parliament.scot/S4_ChamberDesk/WA20140219.pdf

[18] Hellowell et al (2016): Hellowell M, Smith KE, Wright A. “Hard to Avoid but Difficult to Sustain: Scotland’s Innovative Health Tax on Large Retailers Selling Tobacco and Alcohol.” Milbank Q. 2016 Dec; 94(4).

[19] https://www.gov.scot/publications/scottish-budget-2024-25/documents/ – see Page 31 for reference to the new public health supplement.

[20] https://www.healthscotland.scot/media/2660/minimum-unit-pricing-for-alcohol-evaluation-compliance-study-english-july2019.pdf

[21] Manthey et al (2023) Restricting alcohol marketing to reduce alcohol consumption: A systematic review of the empirical evidence for one of the ‘best buys’, Addiction, 2023; 1-13.

[22] https://www.gov.scot/publications/minimum-unit-pricing-mup-continuation-future-pricing-business-regulatory-impact-assessment/pages/7/

[23] Rehm et al (2022), “Differential impact of minimum unit pricing on alcohol consumption between Scottish men and women: controlled interrupted time series analysis”, BMJ Open 2022;12.

[24] “No place for cheap alcohol: the potential value of minimum pricing for protecting lives”, WHO, June 2022: Para 5.1.3.