Stephen McGowan: 21st century temperance?

Stephen McGowan: 21st century temperance?

Stephen McGowan

Stephen McGowan, a specialist in licensing law, discusses the Scottish Government’s current proposals to ban the advertising of alcohol in Scotland.

The Scottish government’s current consultation on restrictions around alcohol advertising and sponsorship has attracted considerable attention. I have myself described it as a “prohibitionists charter”. The consultation was launched on 17 November 2022 and closes on 9 March 2023.

Its proposals include:

  • An outright ban on all alcohol advertising in all public places
  • Banning alcohol advertising and sponsorship in sport
  • Banning alcohol advertising and sponsorship in events eg festivals and local community events
  • Banning alcohol from being seen in shop windows
  • Moving alcohol into a “shop within a shop” in stores
  • Hiding alcohol behind the till like cigarettes
  • Banning alcohol brands from being used in merchandising such as distillery hats or brewery branded glassware
  • Banning alcohol-free variants of alcohol brands, seeing these as “gateway” products to the alcoholic versions
  • Restricting the information shown on alcohol products to state-sanctioned “facts” such as geographical origin or ABV
  • Banning “brand-sharing” – no more Baileys-flavoured Haagen-Dasz or gin-infused jams
  • Consider a new Scottish independent advertising regulator

Underlying the whole document is an overt effort to de-personalise alcohol and uncouple the joy that the moderate majority have from responsible consumption. One particular part has drawn the ire of the drinks industry when the government says: “Without branding and other marketing strategies, alcohol products in each beverage sub-sector are essentially variations of the same thing”, thus discarding centuries of effort and craft. The consultation invites us to look at these proposals through a two-sided prism: that children and young people are harmed by alcohol advertising; and that persons who drink harmfully are triggered by alcohol advertising. It is to protect these two special groups, as well as protecting the rest of us, that we are invited to consider the proposals.

Since the proposals were announced I have been asked by clients and others where this has all come from. Many people have asked me about the evidence, if any, which would justify such prohibition. In this article I shall endeavour to shed some light on the origins of the consultation. It is, of course, entirely probable that an alcohol historian could draw lines to policy and laws going back decades with links to what is proposed here, but I am going to restrict myself to consider matters arising from the Scottish Parliament after the Licensing (Scotland) Act 2005 which came into force on 1 September 2009, and has been on a merry-go-round of amendment ever since.

It may surprise some to learn that a great many of these proposed prohibitions first saw life, in the context of the Scottish Parliament, not from the SNP but in a member’s bill consultation introduced by Labour MSPs Dr Richard Simpson (1999 to 2003 and 2007 to 2016) and Graeme Pearson (2011-2016), entitled “Shifting the Culture” which was released in March 2012. This was a wide-ranging consultation but in relation to advertising, references the French “Loi Evin” laws dated back to 1991. The 2012 consultation proposed, amongst other matters, a complete ban on all advertising in all public places.

The consultation led to the Alcohol (Licensing, Public Health and Criminal Justice) (Scotland) Bill. The bill itself contained some interesting proposed laws some of which the SNP administration took forward under their own steam: minimum pricing, to name one. In relation to advertising, the bill sought to make it a criminal offence to advertise within 200 metres of a “restricted area” such as near schools or play areas but provided an exemption if the advertisement was on a licensed premises (with some qualification). In relation to sports and events sponsorship, the bill contained a proposal to make it an offence to have advertising where the sporting or cultural event was where the “majority of the participants in the event are under the age of 18, or the intended audience for the event consists principally of persons under that age”. Mark that wording well, as it could be resurrected if this consultation itself becomes a bill.

Dr Simpson’s bill did not make it past stage one. However, many ideas were lifted by the SNP and used in their own subsequent legislation: for example, minimum pricing, a 200 metre ban on licensed premises advertising outside of their own venues; and the concept of a “single display area” for alcohol in shops, to name but three.

In September 2015, the former Justice Secretary Kenny MacAskill agitated for new licensing restrictions in an article in The Herald including separate tills for alcohol, on the basis alcohol display areas were still subject to “sales manipulation”. The shop within a shop idea has been raised by certain groups on many occasions and has again resurfaced in this latest consultation. Mr MacAskill’s efforts here can be seen in the context of the pending 2012 bill, which, had it gained traction, he hoped might pick up some of his ideas.

In January 2016 the then minister for public health, Maureen Watt MSP, had this to say on behalf of the government around the issue of advertising, in a letter she sent to the Health and Sport Committee in response to their stage one report of the 2012 bill:

“I welcome the intent behind these measures and the recognition from the Committee that the time is right to give further consideration to the regulation of alcohol advertising and sponsorship in Scotland. I welcome the majority Committee view that this would be best addressed through the next phase of the Alcohol Framework. As the Committee notes, parts of the control of advertising are reserved to Westminster and as such the Scottish government has pressed the UK government to do more to protect children and young people from exposure to alcohol advertising, but in the absence of that cooperation the Scottish government welcomes the Committee’s recommendation that it gives consideration to the areas within its jurisdiction. The Scottish government is already taking forward that work and has now engaged with a network of international experts in the field of advertising and sponsorship. We will be seeking views and recommendations from the experts as part of the next phase of the Alcohol Framework. This work will help to inform the future approach in Scotland.”

Work on this continued via the Scottish government funded campaign group, Alcohol Focus Scotland, which produced a paper called “Promoting Good Health from Childhood” in 2017. The paper was the outcome of the above instruction from Maureen Watt MSP, who directed them and the task-force they set up to produce a report on policy options on advertising restrictions. The 2017 paper proposed the following steps. Those who have read the current consultation may spot just a few similarities:

  • Ban all outdoor advertising in public places including inside sports grounds
  • Set out a timetable for ending alcohol sponsorship of sports, music and cultural events
  • Ban alcohol advertising in print media ie newspapers and magazines
  • Lobby the UK government to introduce bans on TV and cinema advertising
  • Consider jurisdiction over bans on social media
  • Restrict all advertising to promoting factual information “such as composition, origin and means of production”
  • Set up an independent regulator

That report was swirling around the background at the time the Scottish government then pressed on, in November 2018, with publication of the anticipated “Alcohol Framework 2018” – a high level, macro policy framework called “Preventing Harm: Next steps on changing our relationship with alcohol”. In this, the government committed to the following (amongst other steps):

  • “We will press the UK government to protect children and young people from exposure to alcohol marketing on television before the 9pm watershed and in cinemas – or else devolve the powers so the Scottish Parliament can act.”
  • “We will consult and engage on the appropriateness of a range of potential measures, including mandatory restrictions on alcohol marketing, as recommended by the World Health Organization, to protect children and young people from alcohol marketing in Scotland.”

The 2018 Alcohol Framework included the following “Action”: “we will put the voices of children and young people at the heart of developing preventative measures on alcohol. This will involve encouraging and seeking the views of children and young people.”

These measures were due to commence in late 2018 and 2019 and they are centred on what the World Health Organisation calls the SAFER initiative, launched in September 2018, and which includes the following objective:

  • “Enforce bans or comprehensive restrictions on alcohol advertising, sponsorship, and promotion”

In September 2019, Alcohol Focus Scotland then curated a report from the Children’s Parliament entitled “Children’s Parliament Investigates: an alcohol-free childhood – For Alcohol Focus Scotland”. The Children’s Parliament ran sessions involving 84 children drawn from 3 Edinburgh schools to seek their views on alcohol, using materials provided by Alcohol Focus Scotland to frame the context of the workshops. This 2019 paper is a clear proponent of the “lived experience” approach to policy, using a number of quotes from the children, of which the following is an example:

“No one asks us about alcohol and suddenly when you think about it, you realise it’s all around you all the time”.

The use of quotes obtained through these organised sessions clearly influences the current government consultation, which goes so far as to include some of them as a basis for policy.

The 2019 paper reaches a number of conclusions including the following:

  • Remove adverts for alcohol so that children can’t see them
  • Stop alcohol sponsorship of events at which children may be present
  • Make alcohol less visible in shops
  • Make alcohol less visible on TV such as blurring during times when children may be watching

The next and perhaps final crucial paper leading us up to the present consultation is that produced by Alcohol Focus Scotland in June 2022 entitled “Realising Our Rights”. This is essentially a re-run of the 2017 paper mentioned above, albeit moving away from the earlier focus on children to include people with an alcohol problem and “framing the case for statutory regulation of alcohol marketing as a human rights issue”. The June 2022 paper is a significant influence on our present consultation. It is directly quoted and referenced, and that includes the now infamous line I noted near the start of this article concerning alcohol products in “sub-categories being variants of the same thing”.

The increased reliance on human rights is notable and can be summed up with the following statement in the June 2022 paper:

“There is an inherent conflict between the commercial goals of businesses which sell unhealthy products such as alcohol, and the protection of the health of individuals and society. People have a need to be protected from the aggressive marketing of alcohol, but they also have rights under international law to be protected. In addition to harming the right to health and the right to life, survival
and development, alcohol marketing also undermines the rights to privacy and to be free from exploitation.”

The June 2022 paper pushes the government to go all out:

“The Network recommends that the Scottish government introduces statutory restrictions on alcohol marketing activities in all areas of its competence.”

I think it is fair to say that the Scottish government has responded to that suggestion in considerable terms, given the proposals within the current consultation.,

I hope this brief and recent history helps contextualise the origin of the consultation. To those of us who watch for these things, this has been a long time coming. It is the culmination of many years of positioning by groups who wish to see these prohibitions placed on the statute-books.

I have chosen to describe these proposed prohibitions as a form of 21st century temperance because the policy basis is harm-oriented. In my view that approach is limiting because it fails to acknowledge the wider benefits alcohol can bring in society, economy, and even health – for example, in the mental health benefits of socialisation, and acknowledging, for the vast moderate majority, the quantum of joy.

Stephen McGowan is a partner at TLT LLP

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