The Scottish government has launched a consultation about restricting the marketing of alcohol in Scotland.  It already operates a minimum unit price scheme (after several legal battles to confirm such a scheme was lawful).  The government says that according to the World Health Organisation, alcohol marketing restrictions are one of the most effective measures to prevent problem drinking, and some European countries already restrict advertising of alcohol, including France, Norway and Ireland.  It also says that international evidence shows that alcohol marketing has a particularly adverse effect on young people, as well as heavy drinkers. 

So what is it proposing?  

At the moment it is seeking views on possible restrictions and has not made any concrete proposals: 

• Sports sponsorship - the consultation cites research examining 34 football and rugby teams and organisations. Of these, 39% had a sponsorship relationship with an alcohol producer or distributor. The Scottish government asks if there should be a prohibition on sports sponsorship, including prohibiting the use of alcohol brands on clothing worn by players or staff; prohibiting alcohol being advertised on pitch side hoarding, 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 the sports team, players or competition to an alcohol brand or vice versa. It is also considering restrictions on sponsorship of non-sporting events and whether a lead-in time would be appropriate as well as how, and for how long, this might operate. The paper also suggests banning all outdoor alcohol advertising, including on vehicles. 
• In-store marketing - the government also asks about restrictions on in-store alcohol marketing, such as limiting aisle-end displays, window displays etc, similar to the restrictions on HFSS products.
• Brand sharing and merchandise - the government seeks views on whether it should prohibit the sale of alcohol-branded merchandise in Scotland and whether the free distribution of alcohol-branded merchandise in Scotland should be prohibited, as well as any exceptions that should apply such as low alcohol products. This would apply to t-shirts and hats and other similar types of clothing featuring alcohol brands. 
• Print advertising - the government asks if it should prohibit advertising of alcohol in newspapers and magazines produced in Scotland, and if so whether certain trade journals etc should be exempted from such a ban.
• Online marketing - the consultation asks if alcohol branded social media channels and websites in Scotland should be restricted. It also asks if paid-for alcohol advertising should be restricted and if so what types. It also asks if it should restrict alcohol companies from sharing promotional content on social media (eg filters, videos or posts) – whether this is produced by them or by consumers.  It also asks if exceptions should apply to any of these proposed restrictions.
• TV and radio advertising - although BCAP Code rules already restrict alcohol advertising in broadcast media, the Scottish government seeks views on whether a ban or watershed should be imposed.  It is also considering working with the UK government on restrictions on cinema advertising and seek views on products which should be in scope, and times of day or specific movie ratings for restrictions.
•  Restrictions on content of advertising – the consultation seeks views on restricting alcohol advertising to purely factual elements.  The CAP Code and BCAP Code already contain restrictions but the Scottish government doubts these go far enough and provides the example of the regime in Estonia, where only certain elements can feature in an alcohol advertisement. 

How will any restrictions be enforced?

The Scottish government seeks initial input on how any Scottish restrictions might be monitored and enforced. As the consultation does not set out a detailed package of proposals with definitions and exceptions, it says that enforcement is a matter which will require further thought and development depending on the outcome of this consultation. 

Various trade bodies such as the Portman Group (which is funded by the alcohol industry) have criticised the proposals and, in any event, as the consultation acknowledges, it remains to be seen whether the Scottish government can act effectively in isolation. 

We have been here before with HFSS products, as well as gambling. Now it is the turn of alcohol advertising. Naturally, the consultation seeks to throw a lot of ideas into the mix and see which ones might have traction. However, the proposals set out in the document are very extensive and, if implemented in full, would have a significant impact on the ability of drinks businesses to advertise their products in Scotland. 

Some of the restrictions are quite similar to those originally proposed for HFSS advertising, such as the proposal to restrict the content of advertising to purely factual information. This was part of the measures for a total online ban on HFSS advertising, whereby advertisers would only be able to display factual information about their HFSS products online, including on their own websites. This was eventually seen as a step too far and the online ban was later limited to paid advertising. 

The consultation seeks to justify such wide-ranging restrictions on alcohol advertising by pointing to failings with the current rules set out in the CAP Code and BCAP Code:     

“One reason the rules may not be effective is that they are focused on the content of alcohol adverts and entail making subjective judgements. For example, although the current Codes prohibit advertising that is particularly appealing to under 18’s, this is a high threshold to meet. When young people are asked whether alcohol adverts are appealing they often answer that these are, despite self-regulatory bodies decisions that these are not appealing. In theory, within this rule, a marketing campaign can appeal to children, but as long as it also appeals to adults it is permitted this is a high threshold to meet. It suggests that adverts are permitted to appeal to children and young people, so long as they don’t appeal more to them than they do to over 18’s.”

This very issue was addressed in recent changes to the rules on gambling ads. The rules originally stated that gambling ads must not be of particular appeal to children and young people. However, the updated rules say that they must not “be of strong appeal”, which sets a much lower threshold. One wonders whether a more proportionate approach is needed here.

The consultation closes on 8 March 2023.