Some deals are acceptable under law, others are a step too far
It’s a full five years since the first controls on alcohol promotions were introduced, so you might have thought that the law would now be pretty well understood and all arguments settled.
Yet, in an average week I can expect several enquiries seeking clarification of the rules – from conscientious operators keen to stay on the right side of the law and those who suspect that competitors are up to sneaky tricks.
A number of questions arise on a regular basis, and one question tops the “most frequently asked” list: Is an attractively-priced offer of, say, a burger and a pint for a combined price within the law? What’s the position if a burger comes with a free pint?
I reckon the answer is pretty straightforward.
A promotion is ‘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 (whether or not alcoholic drinks)”.
Plainly, there’s nothing to stop the free supply of a drink on the purchase of food. What about the ban on offering alcohol as a ‘reward or prize’?
I’d like to think that no one in possession of their senses would argue that a free pint was a ‘reward’ for buying the burger.
Yet, in some parts of the country the use of the word “free” is banned; and, as a general rule, my advice is always to offer the food and drink at a ‘blended’ price.
In the past few weeks I’ve been asked to look at devices designed to work round the “72-hours” rule on pricing which pose more challenging puzzles.
In relation to alcohol sold for consumption on the premises, a price variation may only be brought into effect at the beginning of a period of licensed hours and no further variation of the price at which that or any other alcohol is sold may come into effect before the expiry of 72 hours beginning with the start of the earlier price variation. (For off-sales, the position is slightly different: the variation only “locks” the price of the particular product for 72 hours.)
In the first scenario I’ve been asked to consider, a pub reduces the price of certain products and, after the first day of the promotion, claims to have run out of stock. In effect, the promotion runs for just one day.
I’m told this happens on a regular basis; and, despite complaints, no action has been taken against the business.
What might be done about this? There’s no doubt that the discounts ‘lock’ the prices of other products for 72 hours, but presumably that doesn’t bother the operator.
In my view, unless a challenge could somehow be made on a “licensing objectives” ground – perhaps problematic, but not impossible – the solution is to be found in consumer protection legislation.
‘Bait advertising’ is a prohibited ‘unfair consumer practice’: that is to say, luring customers with attractive advertising of special prices when the trader knows – or pretends – that he cannot offer the products for a reasonable period of time.
So, a complaint to the local trading standards office might produce the desired result.
In the second scenario, a pub advertises lower prices on selected drinks on Tuesdays, Wednesdays and Thursdays, but the premises are only open on Thursdays, Fridays and Saturdays. Again, the result is a promotion lasting just one day.
If you believe that there’s a duty to trade during all licensed hours, the failure to trade on Tuesdays and Wednesdays would amount to a breach.
But, since the duty to trade seems to have become a dead letter, we need to look elsewhere for the answer.
In my view, since the 72-hour rule relates to the price at which alcohol is sold, absent any sales on Tuesdays and Wednesdays, the rule ‘kicks in’ on Thursdays and the non-trading days are disregarded – defeating the scam.
If you feel that your business has been affected by dodgy deals like this ask your local licensing standards officer to intervene.
Jack Cummins is one of Scotland’s leading licensing lawyers. Every month he writes on licensing law and answers readers’ questions in SLTN.