By Eric Carlin
‘Scotch mist’ may be taken to refer to a whisky-based beverage (Scotch whisky, crushed ice and lemon peel). More traditionally, the term refers to the drizzle, neither full-on rain nor proper mist, that frequently descends on many areas of Scotland. According to my Yahoo search, the expression, ‘What’s this, Scotch Mist?’, is a jokey, sarcastic phrase imported from south of the border, which plays on the uncertain state of the misty-ness or rainy-ness of ‘Scotch mist’ and whether it really exists at all.
At this time of year, as we look towards Christmas, and arguably more important in the Scottish social calendar, Hogmanay, it is interesting that this expression should reference some key contemporary themes. I am hardly the first to note that 2016 has been a year of upheavals and that a fog of uncertainty lies over much of what the future holds for us in many spheres. Leading the obfuscation specifically about alcohol policy, which is where I’ve been spending much of my time this year, has been the Scotch Whisky Association (SWA), an organisation whose priority, according to its website is to promote Scotch whisky as ‘a high-quality, much-loved and prestigious spirit drink with a global reputation’ (SWA, 2016), while it continues to front the efforts of global alcohol producers of cheap alcohol, notably ‘own brand’ vodkas, to prevent the implementation of Scotland’s Minimum Unit Pricing (MUP) policy.
According to the University of York (2010), alcohol-related harm costs Scotland an estimated £3.56bn per year, £900 for every adult in Scotland. They also estimate that the cost to the NHS in Scotland is £267 million a year and the cost of alcohol-related crime in Scotland is £727 million a year. DrugScience has consistently argued that alcohol needs to be regulated as a potentially harmful drug; for example, Nutt et al (2010) emphasise that aggressively targeting alcohol harms is a valid and necessary public health strategy.
Arguments presented by the SWA and its backers have included that alcohol-related harms have been reducing and that there is no need for the MUP legislation. In fact, alcohol-related mortality rates in Scotland are one and a half times what they were in 1981 and they have not reduced since 2012. In 2015, 20% more alcohol was sold in Scotland than in England and Wales, mainly due to higher sales of lower priced alcohol through supermarkets and off-licences, particularly vodka (Health Scotland, 2015.)
The SWA and its partners challenge international evidence that indicates that increasing price, reducing availability and restricting marketing are amongst the most effective and cost effective policy measures to reduce alcohol consumption and harm in a population (Babor et al., 2010). They have been recognised as the 'three best buys' of alcohol policy (World Health Organization and World Economic Forum, 2011).
The litigants in the Scottish case have argued that the setting of a minimum price for alcohol would disadvantage the poor. In fact, the reality is that Scots living in the most deprived communities are eight times more likely to die or be admitted to hospital due to alcohol use than those in the most affluent communities (Beeston et al., 2016). Increasing the price of the cheapest alcohol through MUP would reduce health inequalities.
The Scottish Government's Alcohol Strategy Changing Scotland's Relationship with Alcohol: A Framework for Action (Scottish Government, 2009) gave the ‘three best buys’ central prominence and the SNP included plans to legislate for MUP in their manifesto for the Scottish Parliament in 2010. The law passed in 2012 stated that alcohol could not be sold for less than 50p per unit. There was no Parliamentary opposition to the proposal (apart from one SNP MSP who pressed the wrong voting button!).
Since 2012, the implementation of the legislation has been delayed, due to a series of legal challenges, fronted by the SWA. To rehearse all of these would take me well into 2017 in drafting this blog so I’ll spare the reader that. Suffice to say that, after a first appeal in Scotland against the legislation failed in 2014, in 2015 the European Court of Justice (ECJ) confirmed that EU Member states should determine both the level of protection they wish to afford in protecting citizens’ life and health, and the means by which this level of protection should be achieved. The ECJ referred the case back to the Scottish Courts, requiring them to determine whether other measures are capable of protecting human life and health as effectively as MUP, while being less restrictive of trade in those products within the EU.
In October 2016, the Scottish Court of Session recognised that ‘the fundamental problem with an increase in tax is simply that is does not produce a minimum price’ (Court of Session, 2016). For example, Copy this linksupermarkets and other retailers can sell absorb tax increases by means such as offsetting them against the price of other non-alcohol products. The Court (2016) concluded that:
Minimum pricing would attain the stated objective of protecting life and health, particularly of harmful and hazardous drinkers in the lower quintile, gauged by wealth, of the population…taxation, on its own or in combination, would not achieve the same or a similar objective.
The Scottish courts have now supported the Scottish Parliament’s legislation by all means possible. You would think that the SWA and its colleagues would accept this. Not at all. They issued a statement on their website that they held a ‘strong view that minimum pricing is incompatible with EU law and likely to be ineffective’ and that the Scottish court had ‘not properly reviewed the legislation's compatibility with EU law’ (SWA, 2016).
Earlier this week, the Court of Session decided that the SWA can appeal to the UK Supreme Court. Most legal commentators have little doubt that this appeal will fail. Moreover, even previously supportive media have called on the SWA to withdraw.
Let me return to my ‘Scotch Mist’ metaphor and ask, what is really going on now? I certainly don’t believe that the SWA and its supporters believe that they have an ethical position that they can justify. When they signalled in November 2016 that they intended to apply for leave to appeal to the UK Supreme Court, I tweeted the following message, which was ‘liked’ by Douglas Meikle, the SWA’s Head of Alcohol Policy, indicating his contempt for the democratic process:
In challenging MUP in Scotland, I suspect that the global alcohol producers, for whom the SWA is acting, have done their sums. They have worked out, just as tobacco manufacturers have done in the past, that delaying the implementation of effective and inevitable health regulation as long as possible could be less costly than their lawyers’ costs.
I would also suggest that there may be a clue in what they are up to if we cast our view across the Irish Sea to where a new Public Health (Alcohol) Bill, which includes MUP, is facing highly organised opposition by the same companies who are funding the Scottish legal action. The message to the Irish government and governments who wish to regulate for health in ways that might affect Big Alcohol’s profits: do this and you will be in the law courts for years.
The date of the MUP hearing at the UK Supreme Court is not yet known.
Note, I didn’t even mention Brexit. Happy Hogmanay everyone!
Babor, T. et al. (2010) Alcohol: no ordinary commodity. Oxford: Oxford Medical Publications.
Beeston, C., McAdams, R., Craig, N., Gordon, R., Graham, L., MacPherson, M., McAuley, A., McCartney, G., Robinson, M., Shipton, D., Van Heelsum, A. (2016) Monitoring and Evaluating Scotland’s Alcohol Strategy. Final Report. Edinburgh: NHS Health Scotland.
Court of Session (2016). Available here (Accessed, 22 December 2016).
Health Scotland (2015. Monitoring and Evaluating Scotland’s Alcohol Strategy Annual update of alcohol sales and price band analyses August 2015 (Accessed, 22 December 2016).
Nutt, D.J., King, L.A., Philips, L.D. (2010). Drug harms in the UK: a multicriteria decision analysis. Available from: www.thelancet.com Vol 376 November 6, 2010. (Accessed, 22 December 2016).
Scottish Government (2009) Changing Scotland’s Relationship with Alcohol: A Framework for Action. Edinburgh: Scottish Government.
SWA (2016). Available here (Accessed, 22 December 2016).
World Health Organization and World Economic Forum (2011). From Burden to “Best Buys”: Reducing the Economic Impact of Non-Communicable Diseases in Low- and Middle-Income Countries. Geneva: World Health Organization.