02 March 2023

In November 2022, the Scottish government launched a consultation on a range of measures to restrict alcohol advertising and promotion. Borne out of concern about what the consultation describes as Scotland’s “deep, longstanding and troubled relationship with alcohol”, the consultation puts forward a number of proposals that would significantly reduce the extent to which drinks companies can advertise their products.

The rationale, ministers say, is that the amount and frequency of drinking by Scotland’s young people rises in line with the degree of exposure to alcohol marketing. As such, it is in Scotland’s collective interest for a series of restrictions to be put in place in order to reduce the appeal of alcohol to Scotland’s young people, support a reduction in consumption of alcohol and subsequently improve their health prospects as adults. Ministers also say that restricting alcohol advertising will reduce the “potential triggering effect” that it can have on heavy drinkers and those in recovery or treatment.

What is the current regulatory position?

Alcohol marketing in the UK is largely self-regulated and protections for children and young people are already baked into that regulation. For example, current alcohol marketing must not be likely to appeal to people under 18 years, must not be targeted to people under 18 through the selection of media, and must not feature people drinking who seem to be under 25. There are also prohibitions against alcohol advertising in public spaces if more than 25% or more of the audience are under 18.

The proposals contained in the consultation go much further and are summarised below.

What exactly is the Scottish government proposing?

The consultation paper states that it is crucial that any potential restrictions on alcohol marketing are as comprehensive as possible. As such, ministers are proposing a variety of measures which, if adopted, would see a complete ban on certain types of alcohol advertising and severely restrict the rest. Such changes would have a significant impact on the nature and scope of marketing campaigns for drinks companies as well as practical implications for the licensed trade.

Proposals floated in the consultation include restrictions on:

1. Sports and events sponsorship

• The prohibition of alcohol-branded sports merchandise including sponsorship on replica kits.
• Offering accreditation to sports venues that are “more family friendly” which according to the report entails reducing the alcohol advertising on display, placing limits on the number of alcoholic drinks a person can buy, and hosting at least six alcohol-free events per year.

2. Outdoor and public spaces marketing

• The prohibition of alcohol marketing on billboards and posters near to schools, nurseries and playgrounds, and on public transport vehicles, stops and stations.
• The removal of adverts for alcohol so that children cannot see them.

3. In-store alcohol marketing

• The tightening of restrictions around alcohol display areas.
• The prohibition of window displays within permitted alcohol display areas, thereby reducing visibility of alcohol from outside the shop itself.
• Defining the location of alcohol display areas, for example, near the back of the shop away from entrances, exits or checkouts.

4. Brand-sharing and merchandise

• The prohibition of the sale or distribution of alcohol-branded merchandise including T-shirts, jackets and baseball caps, as well as branded glasses and mugs.
• Applying marketing restrictions to no or low drinks products (between 0% and 1.2% ABV) where these carry the same brand name, or identifiable brand markings, as alcohol drinks (over 1.2% ABV).

 5. Print advertising

• The prohibition of alcohol advertising in newspapers and magazines produced in Scotland. It is noted in the consultation paper that a likely exception to this prohibition would be specialist consumer publications, trade press and industry-focused publications, which are not generally read by young people.

6. Online marketing

• The restriction of alcohol branded social media channels and websites.
• The restriction of paid alcohol advertising online in Scotland (examples given are adverts appearing on websites, via pop ups, on social media platforms, on search engines, or influencer advertising).
• The restriction of alcohol companies from sharing promotional content on social media (e.g. filters, videos or posts).

7. Television and radio marketing

• The introduction of a watershed for alcohol advertising on television and radio.
• Possibly prohibiting alcohol advertising on television and radio completely.
• The restriction of alcohol advertising in cinemas (with exceptions subject to the specific movie ratings, times of day, etc.).

8. Content of advertisements

• Restricting the content of adverts to a list of objective and factual criteria, with a view to making alcohol adverts less appealing and to weaken the link between seeing alcohol adverts and developing positive feelings between brands and positive attitudes towards consumption.
• As an example, the consultation paper cites the restrictions in Estonia, where adverts can only contain specific permitted characteristics including product name, product type, manufacturer’s name, trademark, country of origin, geographical area produced in, alcohol volume, properties (colour, aroma, taste) and serving suggestions.

The consultation paper explores various methods of enforcement, including working with existing regulatory bodies to monitor and enforce requirements in place in Scotland. The creation of a new regulatory arrangement or body is also floated.

It remains to be seen how these proposals, and their proposed enforcement, would interact with what is an already robust set of rules. It is not entirely clear from the consultation paper why the existing legislation is insufficient and how enforcement of the proposed regime would be any more effective.

How might the proposals impact your business?

It is clear that whilst these discussions are in their infancy, what is envisaged is a set of comprehensive and far reaching advertising restrictions that seek to create a strict framework within which drinks companies can market their products.

Were these proposals to be introduced in their entirety (and it should be noted that some of these proposals would likely require the agreement of the UK government – in particular those relating to broadcasting and the internet), Scotland’s drinks industry may have to grapple with a fairly draconian set of rules when marketing their products.

Many drinks companies rely heavily on their branding to distinguish their product from the competition, with large sums of money regularly invested in the IP portfolios of brewers and distillers alike. If implemented, these changes will force a review of how drinks companies and their retailers and distributors use their intellectual property and market their products.

Those in the industry – particularly those with a substantial IP portfolio – will need to rethink exactly how that portfolio can be used in light of any changes, in particular reviewing licensing and merchandising agreements to ensure that these are just as effective following any legislative changes. Many Scottish distillers, for example, rely heavily on income generated through sales of branded merchandise, an income stream that would be cut off if the proposals are adopted.

Given the potential consequences of the consultation, it is essential that those operating in the industry are aware of the proposals and take the opportunity to respond to the consultation before the process progresses.

Responses to the consultation are due by 9 March 2023.  A link to the consultation can be found here: Restricting alcohol advertising and promotion: consultation - gov.scot (www.gov.scot).

Lynn Richmond, Partner & Accredited Specialist in Intellectual Property: lyr@bto.co.uk / 0131 222 2939

Lauren McFarlane, Senior Solicitor: lmf@bto.co.uk / 0131 222 2939