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Item 6 Appendix 1 - Proposed Response

West Dunbartonshire Council · 10 January 2023
Back to Licensing Board — 10 January 2023 and its agenda

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CONSULTATION ON RESTRICTING ALCOHOL ADVERTISING AND
PROMOTION
DRAFT RESPONSE 
Question 8
Do you think we should prohibit alcohol marketing outdoors, including on vehicles,
and in public spaces in Scotland? 
The West Dunbartonshire Licensing Board ("the Board") is responsible for regulating
the sale of alcohol and the operation of premises that are licensed for the sale of
alcohol. The Board, when exercising its functions in terms of the Licensing
(Scotland) Act 2005 ("the 2005 Act"), must have regard to the licensing objectives
set out in section 4 of the 2005 Act. The following of these objectives are particularly
relevant to this consultation: protecting and improving public health and protecting
children and young persons from harm. 
The marketing of alcohol outdoors is a matter that largely falls outwith the remit of
the Board. As matters stand, it is a mandatory condition of a premises licence that
drink promotions do not take place within the vicinity of the premises (200m from the
boundary of the premises). With that in mind, the Board has limited comments in
relation to this matter. 
The Board is of the view that the restrictions on the marketing of alcohol outdoors will
have a significant impact on licensed premises in West Dunbartonshire. In particular,
these restrictions will impact on how licensed premises present themselves. This will
include the frontage of premises and barriers delineating any outdoor area or similar
that premises may utilise. 
The consultation document does not narrate in detail how this prohibition will be
enacted and enforced. The Board would welcome the opportunity to comment on
these proposals once further detail is available. (See comments in response to
Question 35.) 
As the Scottish government will no doubt be aware there are a number of premises
in West Dunbartonshire that are either involved in the production of alcohol (e.g.
breweries or distilleries) or play a part in the local tourist trade. The Board sees such
premises as being important to West Dunbartonshire, bringing employment and
investment to the local area. 
In the Board's experience, breweries or distilleries may have ancillary off-sales or on-
sales facilities, and premises catering for tourists may rely on a link to alcohol
products produced in Scotland. This will extend to their exterior branding and
appearance. Such premises may struggle to comply with a restriction on alcohol
marketing, i.e. the premises’ name and branding will align with their alcohol product. 
The Scottish government may also consider potential issues flowing from the use of
outdoor spaces as licensed areas. The use of licensed outdoor drinking areas has
increased recently (accelerated by restrictions due to the covid-19 pandemic). Such
areas may be visible from the public spaces and may form part of the public space,

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e.g. street cafés. The Board would welcome clarity as to whether the policy intention
is that any prohibition would capture such areas. 
Question 10
What, if any, exceptions do you think there should be to prohibiting alcohol marketing
outdoors, including on vehicles, and in public spaces in Scotland? 
As noted in the Board's response to Question 9, such a prohibition may cause
difficulties for alcohol producers and premises catering for the tourist trade. As such,
the Scottish government may wish to consider whether there are grounds to create
exemption for such premises. 
Question 11
Do you think that we should further restrict the visibility of alcohol in retail
environment, giving reasons for your response? 
The Board licences a range of off-sale type premises from supermarkets to
convenience stores to dedicated off-sales. These premises range in size from small
to large. Amending the rules around the visibility of alcohol in retail environments will
significantly impact the aforementioned premises. 
By way of background, the Board is of the view that it has limited powers to regulate
the location of alcohol within licensed premises. While the 2005 Act sets out that the
area for the display of alcohol is agreed with the Board, this location can be varied by
way of a minor variation application. This application is subject to a "must grant"
provision, i.e. the Board has no discretion when determining the application
(provided that there is no increase in the size of that area). 
The Board is, of course, supportive of evidence based measures that will promote
and improve public health. It does, however, have a concern as to how such
measures will be implemented and enforced. Further detail will be useful and the
Board welcomes further engagement with the Scottish government. The Board
suggests that it is important that any new legislative framework is based on robust
evidence and clearly sets out the role and powers of licensing boards. 
The Board does have a concern that it may be difficult to implement a framework
that prescriptively manages the location of alcohol in a retail environment. For
example, any framework would need to consider all possible settings for the display
of alcohol and this may be complex given the diverse range of retail type premises
and the potential for rapid changes owing to changes in shopping habits or
technological advances. Therefore, the Board would welcome clarification from the
Scottish government as to whether restrictions around the display of alcohol will be
left to the discretion of licensing boards by way of a policy based solution or will the
restrictions be prescribed by legislation? 
In addition, the Board suggests that the Scottish government consider how such
advertising restrictions will impact existing licensed premises. Will premises with an
existing premises licences require to conform with any restrictions or will restrictions
only apply to new premises? Will premises be required to apply for a variation? If so,
this will have significant resources implications for the Board’s support staff.

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The Board anticipates that many existing licensed premises may struggle to comply
with any restrictions, e.g. restricting the use of mixed alcohol and non-alcohol aisles
or moving alcohol behind the till. This may be due to the physical layout of the
premises or a lack of funds to implement the changes. What would happen should
the licence holder say changes are not practical? 
It is appreciated and recognised that these proposals are at a formative stage,
however, clarity on the impact on existing licensed premises is important especially
given that any action to remove or vary a licensed permission may result in a legal
challenge. 
Separately, the Board also notes the reference to alcohol being moved to either the
back of the store or to a separate aisle and in the Board's experience, there can be
reasons relating to the licensing objective of preventing crime and disorder for the
alcohol display to be located elsewhere, e.g. next to the tills, so to allow for ease of
supervision to prevent shoplifting or similar undesirable behaviour. 
Question 12
Do you think we should consider structural separation of alcohol in Scotland to
reduce the visibility of alcohol in off-trade settings (e.g. supermarkets) 
As a licensing board, the Board's responses are focused on the liquor licensing
regime and its impact on the licensing of premises that sell alcohol. It is not in a
position to comment on the merits of such a proposal. It can, however, advise that
the structural separation of alcohol would create a significant licensing impact, with
the layout of all licensed premises being required to be amended. This would require
scrutiny by the licensing board and therefore, would impact on its workload.
Reference is made to our response in Question 11 in relation to the impact on
existing premises. 
Question 14
Do you think that we should prohibit the sale of alcohol-branded merchandise in
Scotland? 
The Board suggests that should the Scottish government pursue this option, any
legislation must set out a detailed definition of what alcohol-branded merchandise is
so to allow for efficient enforcement. 
Question 17
What, if any, other restrictions do you think should be considered on the use of
alcohol brands on non-alcohol products? 
The Scottish government may wish to consider whether the restrictions and
limitations set out in Paragraph 13 of Schedule 3 to the 2005 Act in relation to
branded newspapers, magazines or other publications being permitted outwith the
alcohol display area provided it "does not relate only or primarily to alcohol"
continues to be fit for purpose. In the Board's experience, retailers can interpret this
rule to permit advertising of alcohol in other parts of the store provided that it does
not only relate to alcohol. If there is no legislative change, further guidance as to

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what "does not relate only or primarily to alcohol" means would be useful, e.g. is it
satisfactory if less than 50% of a poster is dedicated to alcohol? 
Question 35
How do you think that any future alcohol marketing restrictions in Scotland should be
monitored and enforced? 
The Board agrees with the Scottish government's contention that the use of
Licensing Standards Officers is "unlikely to be practicable for the types of restriction
covered in this consultation..." especially in respect of the restrictions that impact on
society at large. 
The Board does, however, note that certain aspects of the proposed restrictions,
especially in relation to in-store alcohol marketing, may well be regulated by way of
conditions attaching to a premises licence and therefore, Licensing Standards
Officers will have a role in terms of commenting on new applications, i.e. does the
layout plan comply with the terms of the 2005 Act (as it may be amended as a result
of any changes further to this consultation), and enforcement action. 
It is requested that any additional conditions or legislation that restricts the display of
alcohol in-store is clear and easily applied to all licensed types with sufficient
guidance to allow Licensing Standards Officers to take robust enforcement action in
the confidence that any decision taken by a licensing board will stand up to judicial
scrutiny.