Not all promotions are restricted by Scottish Government legislation
AS operators devise their strategies to capture a share of the lucrative festive period market while striving to stay legal, there’s been a marked increase in the number of promotions questions landing in my email inbox.
Questions typically concern Christmas party incentives. For example, a group booking might be encouraged by offering the organiser a free bottle of wine. “Meal deals” may also be promoted.
As I’ve said on this page on several occasions, because the question comes up time and time again in various forms, the Licensing (Scotland) Act 2005 does not impose a universal ban on the free supply of alcohol.
The only prohibitions relate to (1) multi-buy discounts; and (2) the supply of one or more extra measures of a drink free of charge or at a reduced price following the purchase of one or more measures – a rule that does not impose a requirement for so-called “linear pricing”.
Yet, there are those who continue to argue that giving alcohol away is illegal without supplying any reasoning or who point to the ban on offering alcohol as a “reward or prize” unless it’s to be consumed off the premises. The “reward”, it’s suggested, is one for visiting the premises.
The prohibition is intended to prevent alcohol being given away for on-consumption following success in a pub quiz or some other sort of competition.
I’m fortified in that view by the Scottish Government’s own clarification of the policy behind “irresponsible promotions”. Its explanatory notes accompanying the 2005 Act say this: “These conditions [prohibiting certain types of promotions] are aimed at reducing the problems of ‘binge drinking’.”
The notion that a free bottle of Prosecco would contribute to these problems is beyond my comprehension.
There’s an even simpler analysis.
If the Scottish Parliament had decided to prohibit the free supply of alcohol in every situation it would have done so in clear and unambiguous terms.
In fact, that step would have been essential, because it’s a cardinal rule that legislation involving the potential for the commission of a criminal offence must be absolutely crystal clear.
The ban would not have been restricted to certain types of promotions and would have required very simple drafting: “Alcohol is not to be supplied on the premises free of charge.”
Of course, it’s not just the on-trade which is battling to capitalise on the Christmas and New Year market. It’s increasingly common practice for off-sale outlets to attempt to catch the eye of passing trade by placing A-boards on the pavement.
I expect that, shortly, one off-sale chain’s board with the wording “Fancy a bottle for tonight?” will be replaced with “Grab our festive fizz offers.” That activity is illegal.
The 2005 licensing Act does not impose a universal ban on the free supply of alcohol.
Drinks promotions are not only banned in-store but also “in the vicinity of the premises”, defined as the area extending 200 metres from the boundary of the building shown on the layout plan.
That restriction doesn’t affect third-party promotions – for example, an advert on a nearby bus shelter: the promotion requires to be “in connection with the premises”.
Quite apart from the licensing dimension, there’s a fair chance that the local council will insist on the removal of A-boards or the like unless permission has been given to occupy part of the public footpath.
I’ve also come across a temptation to “go large” with alcohol displays presumably with a view to saving re-stocking time during busy periods: for example, dumping stacks of beer packs in an aisle.
But the size and position of the displays is governed by the premises licence operating plan and layout plan.
The former sets out the off-sale capacity, while the plan shows the position and, usually, the dimensions of the shelving, as well as any authorised floor displays.
If you don’t comply with these arrangements, an offence is committed; and I know that licensing standards officers will be stepping up checks for display breaches in the run up to Christmas.
Do you have a legal question for Jack Cummins?
email firstname.lastname@example.org or write to
Legal Clinic; freepost PEEBLES MEDIA GROUP
Jack Cummins is unable to enter into personal correspondence on readers’ questions.
The advice offered in SLTN is published for information only. No responsibility for loss occasioned by persons acting or refraining from action as a result of material contained on this page or elsewhere in SLTN can be accepted by the author or publisher.