The Scottish Government is currently consulting on proposals to restrict alcohol advertising and promotion in a wide variety of contexts. If all the proposals were to be implemented they would amount to a near-comprehensive restriction on alcohol marketing in Scotland. This certainly appears to be the intention, with the consultation stating that "it is crucial that any potential restrictions to reduce the volume of alcohol marketing are as comprehensive as possible". The consultation process closes on 9 March 2023, so drinks businesses who want to submit a response have one month left to do so.

The proposed restrictions

The consultation sets out a variety of areas in which restrictions are being considered, including:

  • sports and event sponsorship;
  • outdoor and public spaces marketing;
  • in-store alcohol marketing;
  • "brand-sharing" and merchandise;
  • print, television and radio advertising; and
  • online marketing.

The policy rationale

The underlying policy rationale for the proposals in the consultation relates to harms associated with alcohol. There is a focus in the consultation on particular impacts alcohol advertising is said to have on children, as well as "heavy drinkers" and "those in recovery or treatment". The language used in the consultation is notable for the similarity to language that has tended to be used in relation to tobacco regulation, such as a focus on "visibility", references to the "normalisation" of alcohol and the description of potential exceptions from a totally comprehensive regime of restrictions as a "loophole". This is a significant change in tone from previous alcohol regulation initiatives.

Sport and event sponsorship

The consultation invites views on prohibiting alcohol sponsorship in a sport context. It provides a list of "illustrative examples" of what might be caught by such a prohibition, including:

  • prohibiting the use of alcohol brands on clothing worn by players or staff;
  • prohibiting alcohol being advertised on pitch side hoardings, pitches, trophies, tunnels or interview boards;
  • prohibiting players or staff from featuring in alcohol adverts in print or online; and
  • prohibiting online content from linking a team, players or competition to an alcohol brand or vice versa.

The consultation also says that the possibility of restrictions on alcohol sponsorship for non-sporting events, such as music and other festivals "is worth considering", not only to avoid impacts on children, young people and those "in recovery" but also to avoid any "loophole in any regulation" that would be contrary to "the need for a comprehensive approach for restriction to be effective".

Outdoor and public spaces marketing

The consultation states that a "prohibition of alcohol advertising in public spaces may be the best course of action". It sets out that reducing this "highly visible" source of marketing would benefit children and young people, those in recovery and the general population, and so invites views on the possibility of restricting marketing on public transport, in taxis, in or around leisure facilities, in shopping centres and outdoors (e.g. on billboards or signage).

In-store alcohol marketing

The consultation (correctly) notes that, in Scotland, the way that alcohol is displayed and sold in a retail context is already extensively regulated through the licensing system. For example, retailers trading under a Premises Licence already need to restrict alcohol sales and promotions to a designated "alcohol display area".

Notwithstanding this, the consultation expresses a concern that "visibility of alcohol in the retail environment may influence children to think of alcohol in the same way as other everyday consumer goods sold at shops like food, clothes and medicines, and contribute to the normalisation of alcohol." It is said by the Scottish Government that such visibility may "create positive attitudes around alcohol which later influence consumption decisions".

The consultation therefore invites views on further restrictions on the "visibility of alcohol" in the retail environment, in particular in relation to:

  • restricting window displays of alcohol;
  • restricting the use of mixed alcohol and non-alcohol aisles;
  • prohibiting aisle-end displays of alcohol;
  • "redefining" the alcohol display area; and,
  • covering alcohol behind a cash-desk or till (in a manner similar to the display and sale of tobacco).

"Brand-sharing" and merchandise

In addition to direct marketing, the consultation also expresses concern about "brand-sharing", defined in the consultation as "using a brand, primarily known as an alcohol brand, on products which are not alcoholic drinks". The consultation provides examples of branding for alcohol products being used in other foods or drinks, or on merchandise such as clothing.

The consultation invites views on introducing restrictions in this area generally. It seeks particular views on either (i) prohibiting "alcohol-branded merchandise" altogether or (ii) prohibiting the free distribution of such merchandise.

In the context of the increasing popularity of no-or low alcohol content drinks ("NoLo products"), the consultation specifically asks whether general restrictions should also apply to those products. The Scottish Government appears concerned that NoLo products using branding typically associated with alcohol could still be marketed in ways in which, or places where, the marketing of the 'parent' alcoholic products would be prohibited.

Online marketing

The consultation notes that online platforms use targeted advertising, drawing upon data gathered as to a person's behaviour and interests, and invites views on the regulation of the online marketing of alcohol.

The consultation divides online marketing of alcohol into three categories:

  • Owned media – including adverts displayed on alcohol brands' own websites and social media channels
  • Paid media – including paid adverts on websites, social media or search engines, as well as the use of "influencers"
  • Consumer generated content – content posted and shared by consumers on their own social media channels

The consultation invites views on introducing restrictions on alcohol marketing on owned and paid media. It also asks whether alcohol companies should be restricted from sharing "promotional content" on social media, whether produced by them or by consumers. In respect of each category, the consultation also invites views on any exceptions that should apply.

The consultation does not set out how any of the online restrictions it contemplates would be given effect to in practice.

Print advertising

The consultation states that, if print advertising of alcohol were not to be restricted, it may "provide an opportunity for increased expenditure on print marketing, instead of the other forms of marketing being restricted". The implication is that the Scottish Government may propose restrictions on print marketing as a form of 'anti-avoidance', as much as for the purpose of restricting print marketing for its own sake. This perhaps illustrates an intention to have a comprehensive scheme of restrictions.

The consultation invites views on a general prohibition on the advertising of alcohol in newspapers and magazines produced in Scotland. The Scottish Government appears open to exceptions from any such prohibition for specialist consumer, trade press and industry-focused publications, on the basis that these are unlikely to be seen "on a large scale" by children and young people or by those in recovery.

The consultation recognises that it would be "unlikely" that any Scottish legislation in this area would be able to extend to publications printed outside of Scotland but distributed inside. It sets out the Scottish Government's intention, if action is taken to restrict print advertising of alcohol in Scotland, to "encourage" the UK Government to introduce complementary restrictions for those publications produced elsewhere in the UK and distributed in Scotland.

Television and radio advertising

The consultation also expresses concern about the effects of television and radio advertisement of alcohol on children and those in recovery. However, the consultation notes that the Scottish Government "may not have the powers to implement all of the restrictions outlined" in the consultation in relation to television and radio (though in truth it would be the Scottish Parliament which would legislate for such restrictions) and "may need to work with the UK Government to take action". This is the only area where such a limitation is expressly acknowledged.

Nonetheless, the consultation invites views in this area. It specifically asks consultees about the possibility of: (i) a general prohibition on television and radio advertisement of alcohol or (ii) a "watershed" time for such advertisement. The consultation also invites views on restrictions on the advertisement of alcohol in cinemas.

Content restrictions on advertisements

As well as restrictions on where and how alcohol can be advertised, the consultation invites views on restricting the content of alcohol advertising. In particular, the consultation asks whether alcohol marketing should be restricted to only factual information and/or to specific product characteristics.

Enforcement

The Scottish Government's thinking on how to enforce any of the restrictions discussed in the consultation appears to be at an early stage. There is a recognition that existing enforcement mechanisms are unlikely to be sufficient. The Scottish Government is open to creating new regulatory arrangements or a new regulatory body in Scotland to monitor and enforce any new measures but has committed to further "thought and development" on enforcement once the results of the consultation are clear.

The European Convention on Human Rights ("ECHR")

The proposals in the consultation are wide-ranging and would, particularly if implemented at their widest and in combination, have a very significant impact on alcohol producers, suppliers and retailers, as well on advertising platforms (and indeed agencies).

Under Article 10 of the ECHR, restrictions on freedom of expression need to be rationally connected to, and a proportionate means of achieving, a legitimate aim.

The same general requirement applies to restrictions on a person's peaceful enjoyment of their possessions (which include IP, such as that in alcohol brands) under Article 1 of Protocol 1 to the ECHR.

While commercial expression such as advertising is afforded less protection under the Convention than (for example) political speech, and the A1P1 right also receives only limited protection, the Scottish Government would need to demonstrate, in respect of any set of restrictions it seeks to introduce, that these would pursue a legitimate aim, would be effective in achieving that aim, and in any case are proportionate in all of the circumstances.

Legislative competence of the Scottish Parliament

The consultation appears to recognise that certain restrictions may be outside of the Scottish Parliament's powers, the implication being that they would relate to matters reserved to the UK Parliament under the Scotland Act 1998 (though TV and radio advertising is the only area where this is expressly stated). The consultation nevertheless states that there is value in gathering views on all the potential restrictions in pursuit of a "comprehensive approach to restriction".

Any legislation which contravenes rights protected under the ECHR, or goes beyond the Scottish Parliament's legislative competence because it strays into reserved matters territory, would be vulnerable to legal challenge either by the UK Government or by those affected by the legislation. As ever, however, the devil will be in the detail.

If you would like any support with preparing a response to the consultation, or with understanding either how the measures in the consultation might affect your business or whether they might be open to potential challenge, please contact Charles Livingstone or your usual Brodies contact.

Contributor

Charles Livingstone

Partner