THE SCOTCH Whisky Association (SWA) may have been vilified for stalling the Scottish Government’s bid to introduce a minimum unit price for alcohol but, the organisation argued in the Supreme Court this week, it is as committed as the Government to finding a way of reducing problem drinking.

The problem is the SWA and the Government disagree on who the most problematic drinkers are.

Noting that “Scotland has a significant alcohol-related health problem” the Government’s chief legal officer, Lord Advocate James Wolffe QC, told the bench of seven judges that “the greatest harm is experienced by those who live in the most deprived areas”.

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Introducing a minimum price of 50p per unit of alcohol would, he said, not only be “simple to understand, measure and enforce” but it would target “those individuals who will benefit most from a reduction in consumption”.

“It creates a floor price that protects against trading down,” he explained.

The SWA’s representative, Aidan O’Neill QC, begged to differ, arguing that as the aim of the Government’s minimum pricing policy is to “decrease consumption among the population generally and specifically among hazardous and harmful drinkers”, it should have an impact across the economic divide.

“You can put a minimum price in and the rich can just trade up, it’s not touching their consumption habits,” he said.

Mr O’Neill added: “One per cent of drinkers are harmful drinkers in poverty. In order to deal with the problem of one per cent of harmful drinkers in poverty [the Government] has produced a measure that impacts 100 per cent of drinkers.

“If you are interested in protecting the life and health of humans you need to hit the affluent in their pockets as well.”

The solution, according to the SWA, is to increase alcohol excise duties, which would raise the price of alcohol across the board rather than just at the bottom end.

While Mr O’Neill said this would “achieve precisely the same [health] benefits” as a minimum unit price of 50p, it would do so without erecting any barriers to trade – which is what the case is really about.

The argument, which was put forward not just by the SWA but by EU trade bodies spiritsEUROPE and Comité Européen des Enterprises Vins too, is that a minimum alcohol price would be unfair to European companies that sell cheap alcohol in the UK because it would effectively take away the competitive advantage they gain from making their products in lower-cost jurisdictions.

As Charles Livingstone, a partner at Brodies who acts for the SWA, said, the trade bodies believe that minimum pricing is likely to “breach single market rules and distort competition and so would be unlawful if less trade restrictive alternatives are available”.

It may be a bit of a stretch to see the SWA as the protector of cheap-booze makers’ rights, but put in the context of the precedent that minimum pricing could set on the global stage it is easier to see why the body has taken this stance.

“The petitioners are very concerned about the precedent minimum unit pricing would set for the trade of alcohol products around the world and for the ability of countries to adopt policies that discriminate against imports,” Mr Livingstone said. “From the SWA perspective specifically, the scotch whisky industry is export focused – 90 per cent of scotch is exported to 182 markets overseas – and relies on open markets and free trade to sell successfully around the world.

“Minimum pricing schemes amount to non-tariff trade barriers and this is of real concern to the industry. If other governments were to follow the Scottish Government’s lead, the scotch whisky industry would be damaged and with it the jobs and communities which rely on the industry’s success.”

Nevertheless, concerns about public health have been at the centre of this case from day one and will weigh heavily as the judges consider their decision. It is possible to breach single market rules to protect public health, but only if there is no other option.

Mr O’Neill told the court there is “a quiver full” of tax treatments that will achieve the same health aims as minimum pricing while also being more consistent with the principles of free movement.

He will have to wait until the end of the year to discover whether the Supreme Court agrees, with the judges expected to take between three and six months to reach their decision.