Food & Beverage Update: Tackling Alcohol Misuse

The Public Health (Alcohol) Act 2018 was brought in to tackle Ireland's ongoing problem with over-consumption and misuse of alcohol. The Act seeks to reduce the per capita alcohol consumption to the OECD average of 9.1 litres, some two litres below our current levels. The main reforms relate to:

• Minimum unit pricing (MUP)
• Health labelling of alcohol products
• Increased regulation of advertising, marketing of and sponsorship by alcohol products
• Structural separation of alcohol products in mixed trading outlets
• Alcohol promotions

The Act also empowers the Minister for Health to make regulations on any of these matters.

Minimum unit pricing

Section 11 of the Act states as follows:

• The minimum price per gram of alcohol will be 10 cent
• The formula for calculating MUP is 10 cent multiplied by the quantity in grams of alcohol in a product, which equals the minimum price for that product

A person who sells an alcohol product at a price that is below the minimum price set by this Act or advertises or promotes the sale of an alcohol product at a price that is below the minimum price for that product, will be guilty of an offence. Certain exemptions are expected including the sale of alcohol products at tax-free shops to travellers departing the State and distribution by wholesale or free of charge.

This section has not yet been commenced. The government is reportedly set to fast-track its commencement following the success of a similar provision in Scotland. Alcohol consumption in Scotland was reported as dropping to its lowest levels since records began following the introduction of MUP in 2018.A decision has also been made to align the introduction of minimum alcohol pricing with Northern Ireland, but the Government would have to consider it further if political stalemate continues in the North.

Labelling

Under Section 12 of the Act, which has not yet commenced, labelling of alcohol products must include:

• The amount of pure alcohol as measured in grams
• The calorie count
• Health warnings regarding the danger of consuming alcohol
• Details of a public health website to be set up by the HSE, which will give information on alcohol and related harms

Licensed premises will also be required to display a notice inside the premises with the above health warnings and website details. They will also be required to have a document containing the calorific value and pure alcohol content of alcohol products sold on the premises.

The introduction of labelling requirements would lead to companies having to create labels specific only to the Irish market. This could arguably create a barrier to trade – particularly for SMEs where the cost may influence their decision to trade in the Irish market.

Advertising

New restrictions on the advertising of alcohol products mean that specific information about the alcohol product will need to be contained in the advertisement when this section is commenced.

Section 13(2) of the Act states that a person shall not advertise an alcohol product unless the advertisement includes:

• Various health warnings regarding the danger of alcohol consumption
• Details of a website, to be established and maintained by the Health Service Executive, providing public health information on alcohol consumption

Section 14 is now in operation as of 12 November 2019. It prohibits the advertising of alcohol products in a number of locations including:

• Parks maintained by a local authority or the Commissioners of Public Works
• Within 200 metres of school grounds, early year services or playgrounds
• In train or bus stations or at bus stops
• In or on public service vehicles, light rail vehicles or trains

As of 12 November 2019 it is now an offence to advertise alcohol products in a cinema (s20), or to market alcohol products on children’s clothing by way of a trade mark, marketing image, emblem, logo or reference (s17).

Structural separation

By November 2020 mixed trade outlets must ensure the separation of alcohol products and ads for alcohol products from other products. It states that the holder of an off-licence must ensure that ads for alcohol products and the actual alcohol products for sale are exclusively confined to a single area in the premises to which the off-licence is attached. The Act states that the area must be separated from the rest of the premises by a physical barrier. Customers should not have to pass through this area to buy non-alcohol products. Non-alcoholic products can be sold in this area only if they are also available elsewhere in the shop.

As an alternative, alcohol products may be stored in a unit behind the counter at one point of sale area only. The products cannot be visible from the storage unit when closed and no advertisements for alcohol products may be affixed to the storage unit.

Minister for Health, Simon Harris, has indicated that he will give small and rural outlets an exemption on blocking off or covering up alcohol products. He confirmed there will be an amendment to try and “mitigate against that burden for small shops”.

Alcohol promotions

The Act seeks to restrict promotions offers on alcohol products such as two-for-one offers or limited reduced price offers. It is also unlawful for retailers to have loyalty or bonus point systems related to the purchase of alcohol.

The Minister for Health Simon Harris is currently seeking approval from the EU for the commencement of section 23 of the Act. Once approved its provisions will come into operation from September 2020.

Consequences of not complying with this legislation

If a person is found guilty of an offence under the various sections, they will be liable to pay substantial fines and/or jail time under section 8.

For example:

• Selling below the legal minimum price on indictment – a fine up to €250,000 and/or up to 3 years in prison
• Sale of an alcohol product which does not comply with labelling requirements on indictment – a fine up to €100,000 and/or up to 2 years in prison
• If the breach is continued after being convicted, the person shall be liable for a fine of €2,000 per day.

Conclusion

The Act was passed in October 2018 but as of yet only the provisions relating to advertising restrictions have been enacted to date. These will require careful consideration from those selling alcohol products or working in the alcohol industry. With regard to expected future changes to the law, it will be interesting to see how and when minimum unit pricing is brought in and restrictions on labelling as these will have a wider effect on the industry as a whole.

For more information on how the proposed reforms could affect your business, contact Adam Hogg, Partner in our Real Estate and Food & Beverage teams.

---

The content of this article is provided for information purposes only and does not constitute legal or other advice.