Irresponsible drink promotions

Are we any closer to understanding what is and what isn't irresponsible when it comes to drinks promotions? Paddy Whur reports.

This is still a question which generates great debate. I can’t see that we have any great certainty of what falls into the category of an irresponsible drinks promotion.

In my view there are some definitive positions where there would be an irresponsible promotion, some which would not…and a huge grey area. Lawyers like grey areas….

What is an irresponsible promotion?

Anything which breaches the mandatory condition on the premises licence. A breach would mean that the premises licence holder would be committing a criminal offence under s136 of the Licensing Act. .

The mandatory condition states:

• The responsible person shall take all reasonable steps to ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotions in relation to the premise.
• In this paragraph, an irresponsible promotion means any one or more of the following activities, or substantially similar activities, carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children –

a) games or other activities which require or encourage, or are designed to require or encourage, individuals to–

(i) drink a quantity of alcohol within a time limit (other than to drink alcohol sold or supplied on the premises before the cessation of the period in which the responsible person is authorised to sell or supply alcohol), or

(ii) drink as much alcohol as possible (whether within a time limit or otherwise);

(b) provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted fee to the public or to a group defined by a particular characteristic (other than any promotion or discount available to an individual in respect of alcohol for consumption at a table meal, as defined in section 159 of the Act);

(c) provision of free or discounted alcohol or any other thing as a prize to encourage or reward the purchase and consumption of alcohol over a period of 24 hours or less;

(d) provision of free or discounted alcohol in relation to the viewing on the premises of a sporting event, where that provision is dependent on –

(i) the outcome of a race, competition or other event or process, or

(ii) the likelihood of anything occurring or not occurring;

(e) selling or supplying alcohol in association with promotional posters or flyers on, or in the vicinity of, the premises which can reasonably be considered to condone, encourage or glamorise anti-social behaviour or to refer to the effects of drunkenness in any favourable manner.

• The responsible person shall ensure that no alcohol is dispensed directly by one person into the mouth of another (other than where that other person is unable to drink without assistance by reason of a disability).

So if you fall in one of the prescriptive categories above then in the circumstances you would be carrying out an irresponsible drinks promotion and capable of being prosecuted (£20,000 fine and or 6 months' imprisonment).

Guidance has been given by the Home Office and can be found here.

What is not an irresponsible promotion?

I would advise that any promotion which does not specifically fall within one of the above prescriptive definitions, and does not have any effect on the licensing objectives, would not fall in to that category.

The “Grey Area”

Now it gets interesting…..

What about heavily discounted nights at venues? I would suggest that if these are managed properly, and people are not sold more alcohol if they clearly have had enough to drink then they are permissible. I would always advise that there is good staff training and risk assessments in place to ensure all staff are aware of the potential issues.

What about Beer Pong? Hugely popular with a number of venues now. Again, I would suggest that with proper parameters that this is not immediately a breach of the mandatory condition. I take the view, therefore, when reading the specific wording of the mandatory conditions that Beer Pong does not contravene the mandatory condition. Clearly the consumption of alcohol by individuals whilst they are playing is something that should continue to be monitored by staff, but I do not think that the game could be seen to be breaching the mandatory condition.

I have just heard that there was some very zealous policing of some premises over the weekend where, in my view, the police were wrong with their approach. I understand that premises were threatened with immediate closure (no power) if they did not cease the promotion (which did not per se breach the mandatory condition).

Paddy Whur is a partner at Woods Whur. He can be contacted by email.