Minimum unit pricing for alcohol: Why reports of its illegality were premature

by John Holmes (this article originally appeared on John Holmes’ blog, APE: Alcohol Policy and Epidemiology)

Last Friday, the Scottish Government and public health campaigners celebrated the news that minimum unit pricing (MUP) was, once again, legal.  Scotland’s highest court had ruled that the Scotch Whisky Association’s (SWA) appeal against an earlier judgement was not well-founded and that the policy was compliant with European law.  See here for the BBC’s report and here for the full judgement.


The decision surprised many as just 10 months ago the Guardian and many others had announced “Minimum alcohol price in Scotland breaches EU law” after the European Court of Justice set out legal hurdles which, seemingly, the policy could not clear.  A story may be written about how journalists reached such definitive and wrong conclusions within minutes of receiving a judgement which actually said something quite different.  However, that is for another day. For now, I will try to explain why the legal hurdles were more surmountable than the headlines suggested and why Friday’s decision turned out the way it did.

First, we need to understand the role of each court in this process.  In 2014, the Outer House of the Court of Session ruled that MUP was legal and rejected each of the SWA’s grounds for requesting a judicial review of the Scottish Government’s legislation.  The Outer House also refused to refer the case to the European Court of Justice (ECJ). The SWA appealed and the Court of Session’s Inner House, the highest court in Scotland, agreed that a ruling was required by the ECJ to clarify several points of European law.  The ECJ interpreted these points of law and the case returned to the Inner House.  However, there are two crucial points in what happened next:

  • First, the Inner House did not undertake a full reassessment of the evidence in light of the ECJ’s ruling. Instead, it considered whether the Outer House had erred in its judgement and whether new evidence pertaining specifically to the ECJ’s ruling should change that judgement.
  • Second, as instructed by the ECJ, the Inner House did not seek to substitute its own assessment of the evidence on MUP for that of the Scottish Government. Instead it more simply assessed whether the Government had behaved reasonably and had used appropriate evidence to assess whether the policy met any legal requirements.

These two points are important as, in different ways, they narrowed the scope of the case to focus only on whether the Outer House and the Scottish Government had made reasonable decisions rather than going back to square one and looking at the evidence afresh.

With that in mind, we can begin to understand why the Inner House swept away much of the SWA’s case in short order (obviously, in legal terms, short order includes 40 pages of preamble). Yes, the previous judge had identified the correct legal test to apply. Yes he had correctly identified the aim of the Government’s legislation. Yes the Scottish Government were also justified in believing the policy to be effective given the evidence before them.  No, the SWA’s slapdash hired gun hatchet jobs on that evidence do not count for much here.

So the case came down, as was always likely, to whether MUP was a proportionate policy under EU law. In other words, does MUP either achieve greater benefits for public health or impose fewer restrictions on the free movement of goods than other existing policy options (for which read: alcohol taxation).  This was the hurdle that the ECJ asked the policy to clear and on which new evidence had been submitted, including two studies by our team at Sheffield comparing the effects of taxation and MUP.  This was also the hurdle which left people who read both the ECJ’s judgement and the subsequent news reports slightly puzzled.  Given public health researchers had long-argued (and in some cases evidenced) that MUP reached the places that alcohol taxation could not, why would the Scottish courts not find that the hurdle had been cleared?  With hindsight, it seems hard to believe the case could have gone any other way; although perhaps the seeming conclusiveness of the court’s ruling is colouring my view.

Returning to Friday’s ruling, the opening sentence of paragraph 196 is, for the lay reader, the only one that really matters. It says: “the fundamental problem with an increase in tax is simply that it does not produce a minimum price”. At that point, the die is cast.  In some places, the tone of the ruling on this point seems almost to suggest the court is surprised that it has been asked to adjudicate on something so self-evident.  It goes on to discuss the advantages of a minimum price including that supermarkets may not pass alcohol taxes onto alcohol prices (we’ve looked at that too), the scale of tax increases needed to achieve the same effect as an MUP (and that), the direct linkage of the minimum price to alcoholic strength, the impossibility of trading down to cheaper products and so on.  But, ultimately, the court argues: “It is reasonable to conclude that alternative measures, including increases in taxation are not capable of protecting life and health as effectively as minimum pricing”.  Then, with one last swipe at those unwilling to accept anything but an all-encompassing and incontrovertible evidence base (and some stuff about agricultural regulations) the SWA’s appeal was rejected.

Until it appeals to the UK Supreme Court.  If it does, because it might not.  But it probably will.

Want to read more about MUP and alcohol pricing?

You can find all of our research on alcohol pricing policies on a dedicated page on the Sheffield Alcohol Research Group’s website.  This includes both methods and policy analysis articles.  It also includes reports on the estimated effects of alcohol pricing policies in England, Scotland, Wales, Northern Ireland, the Republic of Ireland and Canada.  There’s also research there on Screening and Brief Interventions (SBI or IBA) and our work underpinning the new UK lower risk drinking guidelines.


John Holmes is a Public health researcher in the Sheffield Alcohol Research Group, ScHARR, University of Sheffield

UNGASS 2016: Q&A with Jean-Luc Lemahieu, Director of Policy Analysis and Public Affairs UNODC

Image: Wikipedia Commons/Creative Commons
Image: Wikipedia Commons/Creative Commons

The UN General Assembly will convene a Special Session (UNGASS) on what it calls “the world drug problem” from April 19-21, 2016, at UN Headquarters in New York (UNGASS 2016 website).

We had the opportunity to correspond via email with Jean-Luc Lemahieu, Director of Policy Analysis and Public Affairs at the United Nations Office on Drugs and Crime (UNODC), and ask him a few questions just hours prior to UNGASS 2016.

The following is an unedited version of our email Q&A with Mr. Lemahieu:

CARBC: The UN does not appear to condone narcotic drug use outside of medical or scientific purposes – is that correct? If yes, does it support the criminalization of all non-medical and non-scientific narcotic drug use?

Jean-Luc Lemahieu: The drug control Conventions* do not allow for recreational use.  The aim is to protect the most vulnerable – those who regretfully will fall in problem use.  However, whereas the Conventions see no place for non-medical or scientific use, the Conventions do not consider personal use itself an illicit activity – this is up to the interpretation of the Member States and national legislation.  Depenalization is also accepted within the Conventions.  Evidently the member states can always decide to go further by altering the scheduling of certain illicit drugs. WHO does play a core advisory role to this end.  The growing perception in especially North America is that recreational use should be accepted for cannabis.  Interesting to this regard is to read the latest WHO report on cannabis (March 2016 [link:]).  Also many countries around the globe, including within Latin America, still prefer a wider coverage instead of accepting the option of individual liberty as often expressed in the pro-lobby circles. Hence, Conventions might not change soon on this topic yet pressures are to increase on this international system with many more US States expected to opt for full legalization.

Jean-Luc Lemahieu, Director of Policy Analysis and Public Affairs at UNODC, 2013
Jean-Luc Lemahieu, Director of Policy Analysis and Public Affairs at UNODC, 2013

[CARBC] At the last Special Session in 1998, the members pledged for a “drug free” world by 2008.  The 2016 draft Outcome Document makes no such commitment.  Is the goal of a drug-free world over and, if so, what is the reason for this change?

[J-L L]There are many aspirational goals which intend to motivate and mobilize.  A ‘cancer free world’, a ‘wor[ld] without poverty’, ‘justice for all’,  and more recently the new 2030 Development Agenda.  Nobody truly believes that a world without cancer, equitable and just to all, ‘nobody left behind’, or a world without drugs is within reach.  Pro-lobby groups however love to turn the table around and make it much more than it is or was.   Fair, that is part of advocacy work.  The real issue which we hopefully all can stand behind is how can we prevent and not promote drug use which can, not necessarily for each and everybody, lead to problem use or other negative effects on families, communities and society at large.  Also crucial is to ensure that those getting to problem use are considered a health and not a criminal problem.  People come first.

[CARBC] You note that UNGASS 2016 “is not about assessing the ‘War on Drugs,’ which,” you write, “never has been framed, mentioned or asked for, in any of the UN Conventions.”  Yet the expression is ubiquitous – in the media, used by special interest groups, and laypeople alike.  Briefly, what is UNGASS 2016 about?

[J-L L] The ‘war on drugs’ has been a prime advocacy tool, is a great soundbite and fell well within press and others.  Correct that the concept itself is without base within the Conventions, one still needs to appreciate that especially in many Latin American countries the suffering from strong prohibitionist regimes has been palatable.  While the Conventions for instance do not ask for the incarceration of drugs users, many Latin prisons are still overburdened by poor individuals who should fall under health care instead of a prison regime.  There is a lot of work ahead of us in going back to the essence of the Conventions, promoting a balanced approach and proportionality of the crime justice system. Beyond this, as with many other criminal activities, the linkage with the 2030 development agenda is equally obvious.  Both vulnerability and opportunity is to be tackled.  Poverty provides vulnerability but there is no causal effect – not all poor are drug users, or worse small criminals (‘not all poor Afghan farmers cultivate opium, and not all opium farmers are poor’).  Nonetheless this vulnerability needs to understood and corrected through pointed development interventions.  In the same time the corruptive and abusive opportunity who exploit the vulnerabilities need to be taken on too – through an equitable justice system, transparent governance and predictable rule of law.  This is what UNGASS 2016 is about. 

For more information, here is a pdf draft copy of Mr. Lemahieu’s presentation at the 2015 Symposium on International Drug Control Policy in China titled “Improving Global Drug Policy: The importance of UNGASS – the contextual setting


*  the Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol, the Convention on Psychotropic Substances of 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (see: