Court of Session refuses Scotch Whisky Association appeal over minimum alcohol pricing

The SWA challenged the Alcohol (Minimum Pricing) (Scotland) Act 2012, arguing that minimum pricing would discriminate against poorer drinkers.

The appeal followed a European Court of Justice (ECJ) ruling from December 2015 which held MUP may breach EU rules on free trade.

ECJ judges said it was “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”.

In today’s judgment, Lord Carloway, Lord Brodie and Lord Menzies upheld the earlier decision to refuse a judicial review.

The judges agreed that “the fundamental problem with an increase in tax was simply that it did not produce a minimum price” and that supermarkets “could absorb any tax increase by off-setting them against the price of other products unrelated to alcohol”.

They also identified the advantage of MUP in being linked to the strength of the alcohol, whereas EU laws do not allow products of the same type to be taxed at variable rates according to their strength.

There was “evidence which demonstrated that the alternative of increased tax, with or without a prohibition on below cost sales, would be less effective than minimum pricing”.

Concluding, the judges wrote: “The First Division concluded that the judge had directed himself correctly on EU law, that his reasoning on the effectiveness of minimum pricing, as compared to tax, was sound and that the grounds submitted in the appeal were not well founded.

“In those circumstances, the appeal was refused and the court adhered to the interlocutor issued by the judge at first instance of 3 May 2013 refusing the judicial review of the Act.”

The SWA could still appeal the ruling to the UK Supreme Court.

David Frost, chief executive of the Scotch Whisky Association, said: “We regret the Court of Session’s ruling in favour of the Scottish Government on minimum unit pricing (MUP). We continue to believe that MUP is a restriction on trade and that there are more effective ways of tackling alcohol misuse. However, we of course remain committed to working with all partners to address this problem so that the long-term trend of declining alcohol-related harm in Scotland continues.

“We will study the details of the judgement and consult our members before deciding on next steps, including any possible appeal to the UK Supreme Court.”