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Minimum Unit Pricing in Scotch Whisky Association v Lord Advocate

Document Cited authorities 1 Cited in Related
Vincent
Date01 May 2017
AuthorAngus MacCulloch
Published date01 May 2017
Pages217-222
DOI10.3366/elr.2017.0411
<p>Five years after the Scottish Government first introduced the Bill that went on to become the Alcohol Pricing (Minimum Pricing) (<a href="https://vlex.co.uk/vid/scotland-act-2012-808390881">Scotland) Act 2012</a> the legal challenge to the implementation of the legislation was back before the Inner House of the Court of Session for its final consideration by the Scottish courts.<xref ref-type="fn" rid="fn1"><sup>1</sup> </xref> Lord Carloway, the Lord President, delivered the court's judgment refusing the reclaiming motion and confirming that, following the preliminary ruling from the Court of Justice (CJEU),<xref ref-type="fn" rid="fn2"><sup>2</sup> </xref> the Lord Ordinary had correctly applied EU law and found that Minimum Unit Pricing (MUP) was not contrary to Art 34 TFEU as it was an appropriate and necessary measure to protect public health.</p> THE JUDGMENT

The central question in the appeal was whether the Lord Ordinary had applied the correct test in assessing the public health justification of the measure under Art 36 TFEU. The test, as set out by the CJEU in its ruling, was that the measure must have been appropriate to secure the public health objective, and must not go beyond what was necessary to attain it. Before addressing the test itself it was important that the Inner House clearly delineated the aim of the legislation. This had become an important question before the CJEU, where the Advocate General had identified “ambiguity” as to the aim3 and the CJEU found the measure to have a “twofold objective”,4 viewing reduction in general consumption and dealing with consumption by harmful and hazardous drinkers as two separate objectives. Neither the Lord Ordinary nor the Lord President struggled with any such ambiguity; the aim of the measure was considered to be “to reduce alcohol consumption generally, and in particular that of harmful drinkers”. There is duality in that formulation, but the primary focus on the “targeted objective” of alcohol misuse and overconsumption stemming from cheap alcohol is clear throughout the judgment.5

When the Inner House turned to consider the appropriateness of the measure the court stressed that it was for the state to exercise a margin of discretion and decide on the degree of protection that it wished to adopt. In doing so it should consider the extent of the particular problem within that jurisdiction. The court noted that the “societal, family and personal effects of excessive alcohol consumption in Scotland are difficult to over-estimate”.6 It was also noted that there was an acute problem in less affluent communities, which also suffer from more severe alcohol-related health problems. Harmful and hazardous drinkers tend to consume cheap alcohol, and therefore will be more affected by the measure when compared to more affluent drinkers, as they cannot “trade down” to cheaper products. The Lord Ordinary had found that the major problem in Scotland was the excessive consumption of cheap alcohol. The court could find no fault in that: MUP was “an appropriate method of securing the objective by tackling the specific consumption of cheap alcohol”.7

Once it was decided that the Lord Ordinary had been correct to identify...

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