Consultation on Restricting Alcohol Advertising and Promotion: Analysis of responses

12 Monitoring and enforcement (Q35)

12.1 Section 15 of the consultation paper considered monitoring and enforcement of any new restrictions on alcohol marketing. It noted that other countries use a mix of statutory and non-statutory approaches, and cited research that suggests that effective monitoring and enforcement require adequate resourcing of the agencies involved, and that more severe sanctions are likely to encourage better adherence to the rules. The consultation paper put forward the options of either working with existing regulatory bodies, or creating new regulatory arrangements or a new regulatory body in Scotland to monitor and enforce marketing restrictions. The consultation paper explained that the issue would require further consideration once the nature of any future policy action becomes clearer.

12.2 The consultation paper included a single open question seeking initial views on this issue.

Question 35: How do you think that any future alcohol marketing restrictions in Scotland should be monitored and enforced?

12.3 The analysis presented here focuses first on the views of those who supported further restrictions on alcohol marketing and promotion (public health and third sector organisations, academic organisations, and around a fifth of individuals), and then on the views of those who opposed further restrictions (alcohol producers, advertising and media organisations, music, culture, events and sporting organisations, retail and hospitality organisations, and around four-fifths of individuals). A final section covers the views of regulatory and licensing organisations. This group is considered separately because of the roles these organisations have in enforcing existing regulations and their potential roles in enforcing any future regulations.

12.4 Note that, while most respondents understood this question to be about monitoring and enforcement of possible future restrictions for the purpose of ensuring compliance, some also discussed issues relating to monitoring and evaluation of any future restrictions for the purpose of measuring their effectiveness. These latter views are not discussed here but are covered in Chapter 14 together with respondents' views about the need for evidence.

Views of those who supported further restrictions on marketing

12.5 Public health, third sector and academic organisations expressed several common views, as follows:

• In order for any alcohol marketing restrictions to have an impact, monitoring and enforcement will be necessary.
• Restrictions should be put on a statutory basis. Self-regulation by the alcohol industry would not be appropriate.
• Legislation should adopt a 'positive list' approach – stating what activities are permitted under the legislation, rather than what are not. This will make monitoring and enforcement easier.
• An appropriately resourced agency (either a government agency or an independent agency) with powers to sanction non-compliance would be essential. Any costs associated with establishing a new independent body to monitor and enforce alcohol marketing restrictions would be recouped over time through savings to the NHS, police, ambulance, and other emergency services.
• Action against non-compliance should be taken in a timely manner. Sufficiently robust and punitive sanctions need to be an integral element of the enforcement regime. Suggested sanctions included substantial financial penalties, suspended / revoked licenses and, for repeated breaches, imprisonment.

12.6 Occasionally, respondents in this group suggested the option of working with existing regulatory bodies. Some noted the existing role of licensing officers, but thought it was 'unrealistic' to expect licensing officers to take on the type of work that would be involved in monitoring and enforcing the measures proposed.

Views of those who opposed further restrictions on marketing

12.7 Those broadly opposed to further restrictions on alcohol marketing (alcohol producers; advertising and media organisations; events and sporting organisations; retail and hospitality organisations; and a large majority of individuals) repeatedly made a number of common points. These were that:

• Alcohol marketing should not be further restricted; instead, existing regulations on alcohol marketing should continue to be rigorously enforced.
• The Scottish Government should seek to engage and work with existing systems of self-regulation, such as those overseen by the Advertising Standards Authority (ASA), Ofcom, and the Portman Group. These have proven to be successful and effective in ensuring widespread responsible alcohol advertising. Advertising and media organisations often noted that the current system is also self-funding.
• Any new regulatory arrangements, or a new regulatory body, would add additional complexity and costs – for government and businesses – and would deliver few of the Scottish Government's desired policy outcomes. It would also create confusion for members of the public, who (it was suggested) would prefer to take their complaints to a single advertising regulatory body.
• Working with existing regulatory bodies would be sensible, cost effective, and practical and would retain existing knowledge and expertise.

12.8 Respondents in the retail and hospitality sectors also made two additional points, as follows:

• Respondents in this group often voiced concerns about the current alcohol licensing system which they described as 'complex', 'riddled with inconsistencies' and 'very onerous to operate in'. They suggested that the current cost-of-living crisis provided an opportunity (and impetus) to look at (i) streamlining the licensing system and processes and (ii) carrying out a formal review of the value / impact of existing measures. (The need for such a review was also raised by licensing organisations – see paragraph 12.13 below.) Retail and hospitality organisations were concerned that any new restrictions on alcohol marketing would place significant additional costs and administrative burdens both on retailers and on local authority licensing officers.
• Two respondents in this group noted that the Scottish Government has yet to implement a Primary Authority scheme for devolved legislation, as set out in the Regulatory Reform (Scotland) Act 2014.^[19] These respondents suggested that, if the proposals for restricting alcohol marketing were brought in, retailers would require a consistent, Scotland-wide approach to avoid different interpretations across local licensing authorities and Trading Standards services. They would also need the legal protection provided by assured advice. There was a question about how this would be provided in the absence of a Scottish Primary Authority scheme.

12.9 Among those who were opposed to further restrictions on alcohol marketing and promotion, a range of other issues were raised less often. Specifically:

• The consultation paper (paragraph 4.11) refers to the complaints-led component of the current regulatory system^[20], but does not mention the free advisory service which is available to the alcohol industry to have their products and promotions reviewed prior to launch. This allows any materials deemed to be irresponsible or not adhering to the Codes to be amended before ever reaching the market. To encourage use of this advice service, discussions are confidential. Information included in annual regulatory reports shows that the use of the service far outweighs the number of complaints considered, demonstrating that most companies seek prior advice as part of a due diligence process rather than risk an upheld complaint.
• The ASA has been particularly active in relation to monitoring and enforcement of digital advertising – an area which respondents across all organisation types saw as particularly challenging.
• Proposed restrictions – particularly with regard to print, TV, radio and online advertising – will be very difficult to monitor and enforce.

12.10 Regarding the latter point, several respondents suggested that the Scottish Government should avoid attempting to introduce restrictions that are not mirrored in other parts of the UK – or elsewhere in the world. This group pointed to the proposed Deposit Return Scheme and noted that the Scottish Government was unlikely to be able to enforce its policies on thousands of small producers trading across the UK and abroad. These respondents saw this as another reason for the Scottish Government to seek to work with existing UK regulators to create an effective system to address alcohol-related harms and ensure responsible advertising.

Views of licensing and regulatory bodies

12.11 Several organisations involved in the current self-regulatory system for alcohol marketing – including the Portman Group, the Advertising Standards Authority (ASA), and the Independent Complaints Panel – made comments relevant to Question 35. Responses were also received from local authorities (including some local authority licensing departments), the Institute for Licensing (the professional body for licensing practitioners across the UK) and COSLA.

12.12 Together, the responses from the Portman Group, the ASA, and the Independent Complaints Panel provided a detailed explanation of how the current self-regulatory system works for alcohol marketing. This group thought that Section 4 of the consultation paper, which discussed the current regulatory system, was not entirely accurate or complete. These respondents described the protections currently in place to ensure that the industry is held to account, and the steps taken to ensure that decisions taken by bodies such as the ASA and the Independent Complaints Panel are independent, transparent and fair. The response from the Independent Complaints Panel noted that their key, independent role in the current self-regulatory system was not mentioned in the consultation paper. These organisations provided specific examples of the efforts they have taken over a number of years to protect consumers (especially those who are vulnerable) and children and young people – and to encourage responsibility and best practice within the industry. They also highlighted the way in which the current system had helped to create widespread alcohol industry support and compliance with marketing rules across all platforms – citing evidence to support this assertion.

12.13 With respect to the specific issue of monitoring, one of the licensing organisations expressed concern that there had been no formal assessment of the existing non-statutory framework for regulating alcohol advertising prior to publishing the consultation proposals.

12.14 Local authorities and the Institute for Licensing highlighted the key role of local authority licensing boards in taking decisions about licensed premises, including how alcohol is sold, marketed, and advertised. There was a view that this role should remain with licensing boards, but that licensing boards will require additional resources to expand inspection, monitoring and enforcement activities if new restrictions are introduced.