Scottish health professionals have welcomed the judgement of the European Court of Justice (ECJ) that Scotland’s Alcohol Minimum Unit Price (MUP) legislation does not per se contravene European law.
The ECJ states that it is ultimately for the national court to determine whether measures other than that provided for by the Scottish legislation, such as increased taxation on alcoholic drinks, are capable of protecting human life and health as effectively as the current legislation, while being less restrictive of trade in those products within the EU. If that is not the case, MUP is justified.
The Scottish courts will now have to examine objectively all the evidence provided by the Scottish Government, including considering the information that was available when the Scottish Parliament approved the legislation.
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, including Ireland, are keen for Scotland to introduce the policy and to emulate it to reduce alcohol-related harms.
Eric Carlin, SHAAP Director, said:
Twenty Scottish people die every week from the effects of alcohol. Much of this is due to people drinking cheap, high strength alcohol. To tackle this, Scotland’s Minimum Unit Pricing (MUP) legislation was passed by the Scottish Parliament without opposition in April 2012. The MUP law would set a floor price below which alcohol could not be sold, directly targeting the cheapest booze that does most damage. However, the policy still has to be implemented because of the ongoing legal challenge being waged on behalf of global alcohol producers, fronted by the Scotch Whisky Association.
SHAAP represents the Scottish medical professions. We welcome the ECJ opinion, which effectively confirms that the Scottish Minimum Unit Pricing policy has to be justified as a regulatory measure to work alongside taxation increases. Taxation increases, incidentally, are also consistently opposed by the opponents of MUP.
We hope that the Scottish courts will now move quickly to gather evidence to conclude this case and that the Scottish Government will then implement this key policy without delay. In the meantime, as I have urged many times before, I would ask the Scotch Whisky Association should drop their opposition to all price controls and prioritise lives over profits.
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.
On 3rd September 2015, the ECJ Advocate General, M. Bott, offered his preliminary opinion on the Scottish case, the main contents of which have now been endorsed by the court’s final judgement.
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.
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 firstname.lastname@example.org