- The new Home Office guidance on mandatory licensing conditions
- Trade criticise new law claiming it forces 'down-sell'
- Pubs face new 'red tape' on advertising drinks measures and prices
- Mandatory code: what the law used to say
The original mandatory conditions included six regulations requiring “all reasonable steps” to be taken to prevent irresponsible drinks promotions.
These included:
- drinking games such as organising a speed-drinking or yard of ale competition;
- discounting unlimited or unspecified amounts of alcohol (such as “women drink for free”, “half-price drinks for students” or “all you can drink for £10”);
- prizes for purchasing/ consuming alcohol within 24 hours (e.g., drink four pints and get the fifth free);
- promotions based on the outcome of sporting events (e.g., “half-price drinks if your team wins”);
- posters or flyers that encourage or glamorise getting drunk;
- and the ban on the so-called “dentist’s chair” promotion whereby drinks are dispensed directly into the mouth of a customer by another.
To date, all of these promotions, except for the dentist’s chair, were subject to an important qualifier — if, despite a promotion technically falling within the above definitions, it did not carry a significant risk of undermining one of the licensing objectives then it was not in breach of the ban.
This allowed common sense to prevail on the ground.
The position now has subtly changed. Firstly, the licensee is no longer expected to take “all reasonable steps” but “must ensure” that irresponsible drinks promotions do not take place.
Secondly, the ban on promotions based on the outcome of sporting events has gone, primarily because it can be covered by other bans on discounting.
That leaves five conditions banning irresponsible drinking; of which three are the dentist’s chair, drinking games, and posters or flyers that glamorise excessive alcohol consumption.
For these activities, there is no room for debate with your licensing officer.
The subjective test remains for promotions offering unspecified or unlimited alcohol free or for a fixed or discounted fee, along with the condition banning rewards for purchasing/ consuming alcohol within 24 hours.
What is “significant risk”?
The new Home Office guidance lists some considerations, including:
- does it undermine one of the licensing objectives?;
- how big is the discount, and how long does it apply?;
- will there be an increase in customers?;
- what type of premises is offering the promotion? (presumably because the promotion might be acceptable in a community pub but not in a high-volume establishment);
- have previous promotions been handled responsibly;
- is the promotion going to cause a problem?
It is also worth noting an exemption for discounts on alcohol provided with a table meal has now been removed, although the “significant risk” test will still apply — again, any sensible drinks promotion with a meal will not fall foul of the conditions, and there are transitional provisions for meals booked up until 5 April 2015.
There is also an important change to age verification policies — the DPS, for the first time, has a legal responsibility for ensuring the sale of alcohol is in accordance with the age verification policy the premises licence holder is already required to have. The minimum required age for a challenge remains 18, with Challenge 21 or 25 being optional. As to acceptable ID, proof-of-age documents must continue to bear the holder’s photograph and date of birth, and also either a holographic mark or an ultraviolet feature (previously it was just a holographic mark).
Lastly, the rules on the availability of smaller measures of alcohol have been tightened up. You are required to display smaller measures — half pints of beer or cider, 125ml glasses of still wine, and 25ml or 35ml measures of gin, rum, whisky or vodka — on menus, price lists or other printed material.
Displaying these measures on one main price list or menu at the bar should be acceptable. Importantly, where a customer doesn’t state their preferred size of these drinks they must be made aware of the range of sizes available, either verbally or by ensuring that they have read the relevant printed material. In short, there is a positive burden on staff to make customers aware of smaller measures (although the process doesn’t have to be repeated every time).
This new requirement will not need a wholesale change of menus and price lists (provided the smaller measures are already listed somewhere prominent) but there is a subtle and important shift of emphasis on to the licensee to satisfy themselves that the customer is aware of these smaller measures.
We will discuss the implications of these changes in future issues, but one thing is already clear — with these revised mandatory conditions it will be very easy for covert enforcement officers to test purchase. A casual upsell could be very costly.