3 Sep 2015

Issued on behalf of Scottish Health Action on Alcohol Problems (SHAAP)

 

Scottish health professionals have welcomed the opinion of the Advocate General of the European Court of Justice (ECJ) that Scotland’s Alcohol Minimum Unit Price (MUP) legislation does not contravene European law. The Advocate General’s opinion marks a significant move forward in the Scottish Government’s battle to implement the ground- breaking measure to protect public health, supported by Health bodies across Europe and several national governments.

The Advocate General’s conclusion includes:

  • That the Common Agricultural Policy does not preclude national rules which prescribe a minimum retail price for wines according to the quantity of alcohol in the product sold, provided that those rules are justified by the objectives of the protection of human health, and in particular the objective of combating alcohol abuse, and do not go beyond what is necessary in order to achieve that objective.
  • That it is for the national court to decide whether the means chosen are appropriate for the attainment of the objective pursued and that, in making that choice, the Member State did not exceed its discretion, and that it has taken into account the extent to which that measure impedes the free movement of goods when it is compared with alternative measures that would enable the same objective to be attained and when all the interests involved are weighed up.
  • That the national court must, in order to assess the proportionality of those rules to the objective pursued, examine not only the material available to and considered by the national authorities when the rules were being drawn up, but also all the factual information existing on the date on which it determines the matter.
  • That Articles 34 TFEU and 36 TFEU must be interpreted as meaning that they preclude a Member State, for the purpose of pursuing the objective of combating alcohol abuse, which forms part of the objective of the protection of public health, from choosing rules that impose a minimum retail price of alcoholic beverages that restricts trade within the European Union and distorts competition, rather than increased taxation of those products, unless that Member State shows that the measure chosen has additional advantages or fewer disadvantages than the alternative measure.

Legislation to introduce a Minimum Unit Price of 50p was passed without opposition by the Scottish Parliament in May 2012. The legislation has yet to come into force because a consortium of global alcohol producers, fronted by the Scotch Whisky Association (SWA), Spirits Europe and the Comité Européen des Entreprises Vins (CEEV) has fought its implementation every step of the way. Many Scottish-based alcohol producers, along with the licensed trade association, have supported the measure.

Changes in the price of alcohol are a key determinant in rates of alcohol harm. In Canada, a 10% increase in average minimum alcohol prices was associated with a 32% reduction in alcohol deaths. The Scottish Government and health advocates have argued that MUP is a vital measure to protect public health, faced with a high and increasing number of alcohol-related deaths in Scotland, which puts a significant burden on health services and social services, as well as on families and society in general. Several other countries are keen for Scotland to introduce the policy and to emulate it to reduce alcohol-related harms.

Dr. Peter Rice, SHAAP Chair, said:

“Minimum Unit Pricing is a measure that has very strong support among doctors and other health practitioners in Scotland who see the harmful effects of alcohol in our everyday work. Twenty Scottish people die every week from the effects of alcohol. Much of this comes from the cheapest alcohol. As clinicians, we welcome the Advocate General’s opinion as a step towards implementing Minimum Unit Pricing as soon as possible. We are confident that Minimum Unit Price has substantial health improvement advantages over other possible price mechanisms and is therefore legal.”

Eric Carlin, SHAAP Director, said:

“This is a good day for Public Health. The Advocate General has made clear that the Scottish Minimum Unit Pricing policy is justified as a regulatory measure that is permitted in European law to work alongside taxation to reduce the lives being destroyed and early deaths causes to Scots every day by cheap alcohol. We await the ECJ’s full opinion in the coming months and we call again on the Scotch Whisky Association and its partners at long last to drop their case and prioritise lives over profits.”

 

Background information:

1. The legal process to date

Legislation to introduce a binding Minimum Price per unit of alcohol of 50p was passed unopposed by the Scottish Parliament in May 2012. The legislation was due to come into force in April 2013 but has been delayed by a legal challenge brought by a consortium of alcohol producers, led by the Scotch Whisky Association (SWA), Spirits Europe and the Comité Européen des Entreprises Vins (CEEV). The opponents of the Scottish legislation have sought inaccurately to frame this as a Bureaucracy v Industry issue, rather than as a vital life- saving measure. It is notable that the measure has had strong support from other trade bodies based in Scotland.

A first legal challenge by the alcohol trade bodies was rejected by the Scottish Court of Session in 2013. The alcohol industry consortium launched an appeal and as part of a second appeal hearing, the Scottish court referred a number of questions to the Luxembourg-based European Court of Justice (ECJ) in April 2014. The questions broadly referred to two particular issues:

Whether MUP legislation is compatible with the EU’s common market organisation for wine; and the Treaty on the Functioning of the European Union’s (TFEU) provisions of free movement of goods.

Whether, under EU law, it is permissible for a member state to implement a new measure like MUP in preference to using existing powers to raise alcohol taxation.

Article 34 of the Treaty on the Functioning of the European Union (TFEU) concerns the free movement of goods. Generally, Member States are not allowed to breach this Article. However, if they can show that there are valid public policy grounds, in this case: public health, to do so, they can refer to Article 36. This is the Treaty provision that lays down the exceptions and justifications for breaches of Article 34. In order to do so they have to show that the measures do not discriminate against imported goods and respect the principle of proportionality – i.e. does the measure do just what is needed to accomplish its aims and does not go beyond.

2. Scotland and Alcohol-related harms

Twenty Scots die every week because of alcohol. Alcohol death rates is Scotland are about twice what they were in the early 1980s. Hospital admissions for alcoholic liver disease have more than quadrupled in the past 30 years and Scotland now has one of the highest cirrhosis mortality rates in Western Europe.

The Scottish MUP policy sets a ‘floor price’ below which alcohol cannot be sold, based on the amount of alcohol contained in the product. In parts of Canada, where minimum price has been consistently and rigorously implemented, a 10% increase in average minimum price of alcohol has been associated with a 9% reduction alcohol-related hospital admissions and a 32% reduction in wholly alcohol related deaths.

MUP is particularly effective at in protecting those most at risk by reducing the amount of alcohol drunk by harmful drinkers who buy most of the cheap alcohol. Harmful drinkers on low incomes will benefit most in terms of improved health and wellbeing. MUP targets cheap, strong alcohol sold in supermarkets and off- licences. Drinks like own-brand vodka or gin, strong white cider and super strength lager, mostly produced in the United Kingdom, will be affected. The measure will not affect pubs, clubs and restaurants.

3. SHAAP

Scottish Health Action on Alcohol Problems (SHAAP) provides the authoritative medical and clinical voice on the need to reduce the impact of alcohol related harm on the health and wellbeing of people in Scotland and the evidence-based approaches to achieve this. SHAAP was set up in 2006 by the Scottish Medical Royal Colleges through their Scottish Intercollegiate Group (SIGA). As a partnership, it is governed by an Executive Committee made up of members of the Royal Colleges, including the Royal College of Nursing.

For further information and comment contact:

Eric Carlin (Director) SHAAP: 0750 5081784 and shaap.director@rcpe.ac.uk

Dr. Peter Rice (Chair) SHAAP: 07740 937732 and peter.rice@nhs.net

www.shaap.org.uk       #MUPsaveslives