‘Tied up in a legal mess’: The alcohol industry's use of litigation to oppose minimum alcohol pricing in Scotland

Abstract

This article examines the alcohol industry's legal challenges to minimum unit pricing (MUP) in Scotland through the stages heuristic of the policy process. It builds on previous studies of alcohol pricing policy in Scotland and across the UK, and of the use of legal challenges by health harming industries to oppose health policy globally. Having failed to prevent MUP passing into law, industry actors sought to frustrate the implementation of the legislation via challenges in the Scottish, European and UK courts. However, the relevance of legal challenges is not limited to the post-legislative stage of the policy process but was foreshadowed in all earlier stages of the policy process. The potential for a legal challenge to MUP, and the alcohol industry's clearly articulated intention to pursue such action, was used by industry actors to seek to prevent the adoption of MUP in the agenda setting, policy formulation and legislative stages and created significant ‘regulatory chill’ in other areas of Scottish and UK alcohol policy. Litigation, and the prospect of it, was thus part of a coherent and integrated long-term strategy which adapted to changes in the political climate and to different stages in the policy process. While both the rhetoric and reality of litigation failed to prevent policy implementation, it succeeded in causing a delay of six years, imposing significant costs on the Scottish government and creating policy inertia in Scottish alcohol policy subsequently. Moreover, the inclusion of a ‘sunset clause’ in the legislation, requiring ongoing evaluation of the policy's effects, presents additional opportunities for the industry to reverse MUP. Thus, industry strategies to undermine MUP and delay further alcohol policy developments require ongoing attention by policy actors and scholars.

Coordination, framing and innovation: the political sophistication of public health advocates in Ireland

“…This study contributes to a broader research programme on the alcohol industry and the role of evidence in alcohol policymaking [ 21 , 41 , 64 , 65 ]. A recurring finding on the alcohol industry lies in the advantages it holds over its opponents with respect to resources and lobbying efforts [ 41 ].…”

“…The stop–go nature of the legislative process followed duelling campaigns in the media and in parliament. The alcohol industry's success in resisting population‐level approaches to alcohol policy has been identified in Ireland [ 1 , 5 , 6 , 10 , 11 , 12 , 13 , 14 ] and elsewhere [ 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 ]. In contrast, public health advocates have typically had limited success.…”

Alcohol policy, multi-level governance and corporate political strategy: The campaign for Scotland’s minimum unit pricing in Edinburgh, London and Brussels

“…Modal venue shifting placed significant demands on the Scottish government’s resources. The political and economic costs incurred during the MUP process has had a ‘chilling effect’ on policy debates, with significant inertia in subsequent alcohol policy development in Scotland, as well as being implicated in the ongoing delay in enacting MUP in England (see also Hawkins and McCambridge, 2020b). With such considerations in mind, the industry strategies identified here must be viewed as being at least partially successful.…”

“…Failure to refer could be used by the industry as grounds for further, time-consuming procedural challenges. The decisions taken by the Scottish government here demonstrate the indirect effects of the ongoing threat of legal challenges throughout the legislative process (Hawkins and McCambridge, 2020b). The prospect of legal challenges appears to have shaped government thinking on referring the measure to the Commission, thereby delaying the adoption of legislation and creating additional regulatory hurdles at which the policy could potentially be halted.…”

“…While alcohol harms generate a large health burden, the hegemonic hold of industry perspectives at the UK government level meant such a re-framing was necessary, and had important political consequences. With the support of the then Cabinet Secretary for Health and Wellbeing and Deputy First Minister, Nicola Sturgeon, the policy had key political buy-in at the highest level of government (Hawkins and McCambridge, 2020a, 2020b). Policies relevant to addressing alcohol harms extend, however, beyond the remit of health ministries, creating the potential for tensions to occur with other parts of the government engaged in alcohol policy.…”