Super-strength booze under fire from creeping prohibition

“We’re not talking about your premium Belgian lager or your local turnip cider,” says Inspector Andrew Mason, an inspector from Suffolk police. “We all know the sort of products we need to target. They are killing more people than heroin.”

This is the argument behind a scheme in Ipswich - a voluntary ban on the sale of a range of high-alcohol products agreed with several supermarkets - that has suddenly found itself catapulted to the centre of central and local government thinking following the coalition’s minimum unit (MUP) pricing u-turn fiasco.

Over 60 towns and cities, including big parts of London, Birmingham and the whole of Scotland, are now poised to step in where many perceive ministers have shied away, effectively introducing a new age of prohibition on several branded and own-label beer and cider products.

This week The Grocer reveals how the Ipswich idea is being officially looked at by the Home office as a potential nationwide model. But behind the scenes, debate is raging over its legality.

The Grocer has already reported concerns from Sainsbury’s and Morrisons that schemes springing up in the likes of High Wycombe, Nottingham, Portsmouth and Lincoln fly in the face of OFT competition rules.

This week the BRC and a leading licensing lawyer joined the protests.”We have concerns regarding the licensing conditions themselves [as well as on] competition law grounds,” says Andrew Opie, BRC director of food.

“Licensing conditions are a local issue accounting for local factors and not something that should be done to tackle perceived national issues.

“A blanket ban on strong lagers and ciders would also catch niche premium products alongside those that are the perceived problem.”

Opie adds that “conversations between retailers either locally or nationally on this issue are strictly illegal in competition law”.

A source at a major spirits company describes the scheme as “very dubious legally”.

“The licensing laws weren’t designed to be that regionalised and the ‘voluntary’ element is a farce when they will probably just revoke someone’s licence if they don’t abide by it, or not renew it when it comes up.”

This week the OFT said the legality of the schemes being rolled out at local level was “a live issue”. The Grocer understands its experts are probing the existing laws with a fine toothcomb before deciding whether to step in, although much could depend on a retailer or supplier making a complaint.

“Licensing conditions are a local issue accounting for local factors and not something that should be done to tackle perceived national issues”

Andrew Opie, BRC

In its official response to the government’s Alcohol Strategy consultation, launched last November, the OFT urged the government to distinguish between proposals for a statutory minimum price unilaterally imposed by government and “the alternative of a voluntary agreement between retailers to agree prices”, something it declared would “almost certainly infringe CA98 and European competition law”.

Some argue the same is true of retailers agreeing to a blanket withdrawal of specific products, identified in the Ipswich model as both high alcohol (over 6.5% abv) and “cheap”.

“There are some London boroughs that have these schemes - Camden is one - where you can’t get an off-licence selling alcohol above 6% abv for love or money. That cannot possibly be right,” says the barrister David Dadds.

Health harm licensing

Opponents also point to the fact “alcohol-related health harm” is not currently written into licensing law, arguing places like Ipswich are already acting outside the law. “Any proposed licensing conditions need to be supported by evidence they will deliver one of the licensing objectives in the Act,” adds Opie. However, under its Alcohol Strategy, the government has proposed making health harm a factor in future licensing decisions, and while some authorities admit they are taking advantage of the vacuum of uncertainty - “we have seen that the OFT hasn’t done anything yet and we are giving it a punt” is how one source in Birmingham describes it - many believe they have both the law and public support behind them.

“We need to challenge what is the community tolerance for alcohol and how we use it in society,” claims Chief Constable Adrian Lee of Northamptonshire Police, another area planning to roll out the ban, and a powerful figure in the call for national adoption. “I think the status quo is no longer acceptable,” he adds.

Slippery slope

For now only a handful of products have been hit by the bans, including the likes of Tennent’s Super lager, white cider Frosty Jack’s and some own-label ciders. But some fear the ban is a slippery slope as the government hands over increasing powers to local police, councils and NHS bodies.

“This will not address the underlying issue of antisocial drinking,” claims Ian Lewis, head of marketing at Westons Cider, which makes drinks including 7.3% abv Old Rosie. “Rather, these local initiatives are blunt, poorly targeted tools that will effectively bar from sale many responsibly marketed alcoholic drinks.”

“These local initiatives are blunt, poorly targeted tools that will effectively bar from sale many responsibly marketed alcoholic drinks”

Ian Lewis, Westons Cider

Yet leading drinks industry execs privately admit they would much rather see a de facto national rollout of the high-strength ban, affecting a comparative controlled number of products - on a voluntary basis - than see a national policy like minimum pricing revived. Last year Heineken pre-empted the issue by voluntarily withdrawing White Lightning and Strongbow Black ciders.

And, ironically, some of the biggest reservations about the local bans have been expressed by the health lobby.

Professor Ian Gilmore, chair of Alcohol Health Alliance UK, while praising the Ipswich model, warns “the history of local innovation is that it occasionally is taken up nationally but more often dies as the local innovators move on or lose their initiative”.

For retailers and suppliers there is also a difficult tightrope to tread, with few wanting to stick their heads above the parapet and be seen even tacitly to condone binge drinking. As beer blogger Pete Brown puts it; “When manufacturers and retailers look to legal action to overturn voluntary bans on their products so they can carry on helping kill people - well, then you’ve dropped any pretence of being anything other than nasty, amoral bastards with no sense of the social consequences of your actions - a purely sociopathic organisation.”