Bulletin - Licensing - September 2011

welcome to our latest licensing bulletin

This issue covers an important number of legislative changes that come into force on 1 October which will directly affect your business.

Lindsays top ranked for licensing law in Scotland
The Alcohol etc (Scotland) Act 2010
More on Challenge 25
The tobacco register
SNP press on with minimum pricing for Scotland
New public health tax for supermarkets
CAMRA calls for goverment to review alcohol unit guidelines
Glasgow licensing board festive hours announced
Join Lindsays Licensing on LinkedIn and Twitter

Lindsays top ranked for licensing law in Scotland

Lindsays are delighted to confirm that our licensing team has achieved a number one tier ranking in one of the professions two major ranking publications. The Legal 500 rankings are based entirely on client feedback, and their 2011 rankings have seen Lindsays Licensing Law top ranked for licensing advice in Scotland.

We strive to provide our clients with quality and practical advice on licensing and gambling matters. We pride ourselves not simply on our knowledge of the law, but on our “real world” understanding of the issues and difficulties that the licensed and gambling trades face on a daily basis. We have a very strong licensing presence across the central belt but we act for clients all over Scotland and appear at licensing boards from Dumfries to Inverness and beyond. We hope to continue to provide a first-class licensing service for all of our clients.

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The Alcohol etc (Scotland) Act 2010

The new Alcohol Act makes several important changes to licensing law which come into force on 1 October 2011. These changes include the introduction of a number of new licence conditions which will apply to every licence in Scotland. The new conditions are as follows:

Multipack bans: “A package containing two or more alcoholic products (whether of the same or different kinds) may only be sold on the premises at a price equal to or greater than the sum of the prices at which each alcoholic product is for sale on the premises”. Phew – what does that mean?! If an operator sells single cans then he cannot sell a multipack of those cans for a price less than what it would cost if buying the cans individually. If a can of Tennents is £1, then 4 cans must be sold at £4 and 20 cans must be sold at £20, and so on. The rule does not apply if the premises does not offer “singles” of that product, and it does not affect multiple multipacks.

Price variations for off sales: You will be familiar with the condition that prohibits price variations unless 72 hours has passed. This means that licence holders must maintain the same price for a product for at least 3 days, and the price can only go up or down at the start of a period of licensed hours. There has been a very subtle change to this condition. Currently the wording says the price for “that or any other alcohol” cannot be changed. This has been interpreted to mean that if you change the price of Jacobs Creek Chardonnay (for example), you could not then change the price of any other brand of wine. The new rule (s.3 of the 2010 Act) simply says “that alcohol”, thereby dropping the “or any other” from the condition (as far as off sale premises goes – the existing wording remains for the on-trade). This allows the off trade to vary prices of different brands as they see fit, so long as each products price variation lasts for at least 72 hours.

Extension of existing “irresponsible promotions” to off sales: The following irresponsible promotion will be extended to off sales “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)”. The effect is that two-for-one type deals and other “quantity discounts” such as three bottles of wine for £10 will be illegal.

Location of drinks “promotions”: A new condition relating only to the off trade is a ban on the location of so-called “drinks promotions”. “Promotion” in this sense means “any activity which promotes, or seeks to promote, the buying of any alcohol sold on the premises for consumption off the premises”. The rule states that such promotions can only be used in the designated off sale display area – this is the area you agreed with the licensing board at the time your licence was granted and is shown on your layout plan. This means you cannot have posters or anything of that sort on display unless within the designated area. This new conditions has a few exemptions but is likely to be troublesome.

Mandatory “Challenge 25”: Many off trade operators already operate “challenge 25”, that is, if the customer looks under 25 then they must prove they are 18 in order to purchase alcohol. But the Government has now made it a condition of every licence in Scotland that such a scheme is formalised and this must be implemented no later than 1 October 2011. If the operator has a Mandatory 25 policy in place, then great – but now we advise you put this on a formal, written footing, for the purposes of best practice and due diligence. Premises with no policy need to create one and have it in place for 1 October. The rule comes in at midnight on 1 October which is a Saturday night. This news has not been met well by the on trade!

If you are unsure about any of the issues raised please get in touch with us as soon as possible.

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More on Challenge 25

This aspect of the new laws has been the most widely publicised (mainly by the SBPA and not, unfortunately, the Government). We strongly recommend you have a written policy in place, and that you train all staff on the terms of that policy as soon as possible. We also recommend you make sure staff sign to confirm they have received the training, and that you make good use of posters and signage to help customers get to grips with the new requirements. There is no set wording for a challenge 25 policy. If you would like assistance on this please get in touch.

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The tobacco register

The new register for tobacco retailers opened on 1 April 2011. As a result of the Tobacco and Primary Medical Services (Scotland) Act 2010 it will be an offence to sell tobacco products without having your business registered from 1 October 2011. If you sell tobacco, cigarettes, or related products, you MUST be registered by 1 October 2011 otherwise you will not be able to sell these products. The registration process is dealt with centrally by the Scottish Government, although local authorities have also been given enforcement powers.

Key points to note are:

• You will need to register if your business meets the definition of “tobacco business”, which includes any business involving the sale of tobacco products by retail.
  
• The types of businesses to be affected will include supermarkets, convenience stores, local shops, pubs and licensed premises which sell cigarettes from behind the bar, and specialist tobacconists.
  
• “Tobacco Products” includes cigarettes, cigars and tobacco but also products associated with smoking such as papers, tubes, filters and even the pipe. If your business sells any of these products you must be registered.
  
• You must be registered no later than 1 October 2011. After that time, unregistered sales of tobacco products will be a criminal offence.

If you sell cigarettes or other products as noted, you must register. If you have not registered by 1 October 2011 you will be committing a criminal offence. We are advising our clients to get their registration in as soon as possible and we are offering a fixed fee for registration, with discounts for clients with multiple premises. Contact us for help or advice on this matter.

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SNP press on with minimum pricing for Scotland

It will come as no shock to anyone involved in licensing in Scotland that the SNP are pressing ahead with a new minimum pricing bill. Although they tried, and failed three times previously, with the new mandate the balance of power has shifted and they no longer need the votes of the other parties.

The concept of minimum pricing still enjoys a healthy dose of cynicism from certain sectors and the Scotch Whisky Association, amongst others, remain doubtful that such legislation is legally competent and challenges are already being considered. Of greater concern to Lindsays is not the introduction of minimum pricing itself but the fear that the new bill will be used as yet another licensing Christmas tree on which to hang various baubles – alcohol abuse still generates substantial headlines and is an attractive target for politicians. The licensed trade is still getting to grips with existing licensing laws which to be frank, are a mess. Changes brought about by the Criminal Justice and Licensing (Scotland) Act 2010 as well as the Alcohol etc (Scotland) Act 2011 (discussed earlier in this bulletin) mean that it is extremely difficult to know just what the law is. This bill could be used to introduce yet more regulation and red tape. Watch this space.

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New “public health” tax for supermarkets

John Swinney announced recently the introduction of a rates hike for premises with a rateable value over £300,000, which is being referred to as a “public health” tax as it will only apply to businesses who sell alcohol and tobacco. This has of course, generated opprobrium from the major supermarkets at whom this measure is directly aimed. Another proposal to tax “out of town” premises was defeated. The new tax is expected to apply from 1 April 2012. This will be deeply unpopular with the
big players who are also facing a new tax in the form of the “social responsibility levy” which is effectively another form of “polluter pays” taxation.

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CAMRA calls for government to review alcohol unit guidelines

The Campaign for Real Ale, one of the most successful consumer groups in Europe, has called upon the Government to “rethink” the daily and weekly recommended safe drinking limits. The current limits are 3 units per day, 21 per week for a man and 2 units per day, 14 per week for a woman. The unit maximums were invented by the British Medical Association in the early 1990s, last reviewed in 1995, and an element of controversy remains as to how the figures were reached. CAMRA maintain the Government has fallen short in promoting the positive effects and impact of responsible alcohol consumption.

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Glasgow licensing board festive hours announced

Glasgow licensing board has announced policy on festive hours for 2011 /2012. For premises with a Premises Licence within the City Centre the extension granted (subject to the condition below*) is one additional hour beyond the terminal hour for the sale of alcohol on the premises, daily (Monday-Sunday). On Christmas Day (Sunday) the sale of alcohol for consumption on the premises can commence at 11.00am.

Premises with a Premises Licence outwith the City Centre only get an extension on Friday and Saturday, (including Christmas Eve and Hogmanay) Christmas Day and New Year’s Day, of one additional hour beyond the terminal hour for on-sales. Again on Christmas Day the sale of alcohol for consumption on the premises can commence at 11.00am.

Members Clubs do not benefit from the policy but Members Clubs who have confirmed on their application for a Premises Licence that the Club’s Constitution and Rules conform to the requirements of Regulation 2 of the Licensing (Clubs) (Scotland) Regulations 2007, will be permitted extended hours up to 3am on Christmas Eve and New Year’s Eve. Where premises are open after Midnight, they will be expected to comply with the Glasgow Board’s policy on the use of toughened glass and other recognised safety products.

*Small print - Only Premises Licences which stipulate in the Operating Plan that their Seasonal Variations include the Licensing Board’s Policy on Festive Hours automatically get the extensions. All others do not and thus require an Extended Hours application. An Extended Hours application requires to be lodged no later than 4 weeks prior to the date which the Extended Hours are sought.

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Join us on LinkedIn and Twitter

Lindsays have launched a new licensing “news and views” group on LinkedIn. The licensing group features commentary and analysis of all the major licensing and gambling stories and regular, daily updates from the licensing team and many more. If you are on LinkedIn please join up to the Lindsays Licensing Group.

Stephen McGowan is now tweeting on licensing and gambling issues and news @LicensingLaws. Views are often his own! Follow Stephen on twitter to keep bang up-to-date with licensing developments.

We hope you found this Bulletin informative. If there are any topics that you wish covered in our future Bulletins please contact
Stephen McGowan - stephenmcgowan@lindsays.co.uk .

This newsletter has been issued by Lindsays on the basis of publicly available information, internally developed data and other sources. Whilst all reasonable care has been taken to ensure the facts stated and the opinions given are correct, Lindsays does not accept any responsibility for its content and advise that specific advice should be sought regarding the topics covered.
© Lindsays 2012