Scotland's policy on minimum unit pricing for alcohol: the legal barriers are gone, so what are the implications for implementation and evaluation?

The UK Supreme Court has ruled that minimum unit pricing for alcohol is legal under European law and can be introduced in Scotland. The Scottish Government may wish to examine whether the proposed MUP level is still fit for purpose and monitor its impact on dependent drinkers, who are potentially at risk of adverse consequences. On 12 June 2012, the Scottish Parliament passed legislation to introduce minimum unit pricing (MUP) for alcohol. This triggered a 5-year legal battle involving the Scottish Outer Court of Session (2012–13), appeals to the Scottish Inner Court of Session (2013–16), an advisory judgement from the European Court of Justice (ECJ, 2014–15) and a final appeal to the UK Supreme Court (2016–17). This battle has now ended after the Supreme Court upheld previous rulings that, while MUP restricts the free movement of goods within the European Union, it is a proportionate response to the public health problem presented by alcohol in Scotland. The Scottish Government now aims to introduce MUP by 1 May 2018, making Scotland the test-site for a policy which has become central to public health advocacy on alcohol in many high-income countries. MUP sets a floor price below which a unit of alcohol (1 UK unit = 8 g or 10 ml ethanol) cannot be sold to consumers. The policy rationale is to prevent alcohol being sold so cheaply as to encourage or facilitate harmful consumption levels. An MUP of £0.50 would substantially increase the price of some of Scotland's lowest cost products, including white ciders, multi-packs of beer and some spirits which are currently available for as little as £0.16, £0.32 and £0.38 per unit, respectively 1-3. MUP thus ensures that the new floor price is directly proportional to the alcohol content of products. Its potential effectiveness has been evidenced particularly by policy modelling in the United Kingdom and evaluation research on similar floor pricing policies for alcohol in Canada 4-8. The legal challenge to MUP was led by industry trade organizations; namely, the Scotch Whisky Association supported at some points by Spirits Europe and the Comité Européen des Entreprises Vins. Their main argument was that MUP contravened European Union (EU) rules on the free movement of goods, which the ECJ had previously ruled prohibited setting a minimum price for tobacco 9. However, in December 2015, the ECJ clarified that MUP could be legal under provisions allowing for ‘proportionate’ free trade restrictions in the interest of protecting public health 10. The proportionality test specified that MUP should either achieve greater benefits for public health or impose fewer restrictions on the free movement of goods than other existing policy options (generally interpreted as alcohol taxation). After considering that introducing a minimum price targets alcohol disproportionately consumed by heavier drinkers, the EU directives which may hinder taxation of alcoholic drinks in proportion to their strength (Directives 92/83/EEC and 92/84/EEC) and the specific problem posed by cheap alcohol in Scotland, the Scottish Outer Court of Session ruled in October 2016 that MUP was a proportionate measure, as targeting cheap alcohol could achieve benefits that taxation policies do not. The industry groups appealed to the UK Supreme Court, but that appeal was rejected on 15 November 2017. The Supreme Court noted additionally that comparing benefits of public health with restrictions on free trade is conceptually and analytically challenging as well as being primarily a task for governments, not courts. With no higher court of appeal available, the current legal process is over. As Scotland moves towards implementing MUP, consideration of the wider implications of the ruling is important. Six years post-implementation, the Scottish Parliament will consider the results of a programme of evaluation overseen by NHS Health Scotland, alongside other evidence, designed to examine policy effects on alcohol consumption, alcohol-related harm and market responses. The Parliament must then vote to continue the policy, otherwise the enabling legislation will expire automatically and the policy will end under a so-called ‘sunset clause’. Although the policy modelling and Canadian evaluations provide grounds for optimism regarding MUP's effectiveness, there are reasons for caution, and we highlight two key considerations. First, the Scottish Government will most probably implement MUP at £0.50, the same level that it proposed in 2012. Modelled estimates suggest the probable effectiveness of MUP at this level has declined markedly over time, because price inflation and market changes have reduced the proportion of off-trade (i.e. shop-bought) alcohol sold below £0.50 per unit from 72% in 2010 to 51% in 2016 11, 12. The 2010 figure is significant, as this was used in the modelling on which the Scottish Government's decision to focus on £0.50 was based. The Scottish Government may need to increase the MUP level early in the 6-year evaluation period to ensure that it achieves the effect that was envisaged originally. Second, careful monitoring of the impact of MUP on drinkers who are dependent on alcohol will be needed. Many of these people consume large quantities of cheap alcohol 13, and they are under-represented in the national consumption and purchasing survey data sets used to model the policy's potential effects 14. There are risks of adverse consequences related to this group, such as the possible growth of an illicit market for alcohol, acquisitive crime to obtain alcohol or fund purchases, redirection of household spending from essentials to alcohol and acute withdrawal problems. These possibilities sit alongside potential positive outcomes such as increased treatment-seeking, reduced consumption levels, reduced harm to drinkers and those around them and a long-term decline in the incidence of dependence. Policy stakeholders should actively monitor both positive and negative outcomes carefully and respond as they arise to mitigate or prevent problems and ensure that the full potential of MUP is realized. The imminent implementation of MUP also has international implications. Governments across Europe have followed the Scottish case closely, and the experience of smoke-free policies suggests that successful public health interventions can spread rapidly. In particular, the Welsh Assembly and the Republic of Ireland's parliament are poised to vote on their own MUP legislation. Although further court battles are likely because the ECJ's judgement makes clear that MUP can be legal in one EU state and illegal in another, depending on the domestic court's weighting of the proportionality arguments, these battles are likely to be shorter now that the ECJ has clarified the law. In this context, to both support policymaking and inform future legal cases, the opportunity to conduct high-quality evaluations in Scotland and other implementing jurisdictions must not be lost. Much of the groundwork to design and commission high-quality evaluation studies has already been conducted in Scotland 15, and this should be replicated in other jurisdictions wherever implementation seems likely. The authors have received funding from the Scottish Government and other public bodies for multiple projects to estimate the potential effectiveness and cost-effectiveness of minimum unit pricing. The authors have also been commissioned by NHS Health Scotland to evaluate the effects of minimum unit pricing on harmful drinkers.

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