Irresponsible drinks promotions

The Licensing (Scotland) Act 2005 (the "2005 Act") comes into force on 1 September 2009.

The 2005 Act is underpinned by five licensing objectives in accordance with which all licensed premises must operate. The five objectives are: - preventing crime and disorder, securing public safety, preventing public nuisance, protecting and improving public health and protecting children from harm.

A drinks promotion, if thought to be "irresponsible" will fall foul of one or more of these objectives.

It will also fall foul of the mandatory conditions for licensed premises contained in the 2005 Act.

This may lead to criminal or other sanctions, for example, the premises licence being suspended or revoked.

This bulletin is designed to provide operators with a better understanding of the parameters within which any drinks promotion may operate.

A promotion is "irresponsible" if it:-

• relates to an alcoholic drink specifically designed to appeal to under 18s

• tries to encourage a person to buy or consume more alcohol than they had intended

• is based on the strength of the alcohol

• encourages drinking alcohol quickly

• offers alcohol as a reward

Issues

• promotions must not directly or indirectly convey that any quantity of alcohol will be free to customers. Words like "unlimited", "bottomless" and traditional "buy one get one free" promotions are not permitted under the 2005 Act. This is fraught with practical difficulties. For example a restaurant chain may wish to run a "free Fathers Day beer" promotion. This would almost certainly be viewed as irresponsible. A workable alternative may be to offer dad a meal and a beer for a set price which incorporates some reduction of the overall price.

• hotel Christmas party night promotions where a set price is paid for unlimited food and unlimited drinks are contrary to the 2005 Act.

• whether a promotion is viewed as irresponsible depends on the particular licensing board in whose jurisdiction it is run. What constitutes "irresponsible" is likely to change over time with the introduction of further legislative provisions. This makes it particularly difficult to gauge whether traditional nationwide campaigns are workable.

Any person will be able to alert a Licensing Board to the fact that a premises could be operating an irresponsible promotion. In practice, Licensing Standards Officers, who are responsible for monitoring the operation of premises and compliance with the 2005 Act, are most likely to regulate its activities and inform the Licensing Board of any likely breach.

When and where?

These restrictions currently relate to buying or consumption of alcohol on a premises. However plans are well underway to bring traditional "off sales" premises in line with their on sales equivalent. In reality, some Licensing Boards already implement policies which restrict the activities of both on and off sales premises, with the City of Glasgow Licensing Board leading the charge. Moreover, some Boards and, indeed operators, currently operate under these restrictions which, in terms of the 2005 Act, will not come into force until 1 September 2009.

In determining whether a promotion is irresponsible, thought must be given to the precise wording of the promotion, and the individual facts, including brand, amount of alcohol, practical implementation, location and of course the particular Board concerned.

For further information or advice in relation to the above, please contact:-

Audrey Ferrie
Senior Associate and Head of Licensing
Tel +44 (0)141 567 9419
Email audrey.ferrie@mcgrigors.com

Frances Ennis
Solicitor
Tel +44 (0)141 567 9423
Email frances.ennis@mcgrigors.com