The Scottish Government did not take EU law into account in its plans for a minimum price for alcohol, a court has been told.
A legal challenge against the legislation, which would see a minimum unit price of 50p brought in north of the Border, returned to court today.
The Scotch Whisky Association (SWA) took action against the policy, which it argues would breach European Union (EU) trading rules, after it was passed by MSPs in 2012.
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Judge Lord Doherty rejected the challenge in May last year, ruling the legislation was compatible with UK and EU law.
An appeal started at the Court of Session in Edinburgh today. The association is joined in the action by Spirits Europe and the CEEV, the federation of European wine producers.
Setting out the case, Aidan O'Neill, QC, said a "fundamental failure" of the Scottish Government's case was its focus on health evidence, as opposed to the effect on imports from other member states. The policy had been "dreamed up" by health advisers with no consideration given to its lawfulness, he said.
Mr O'Neill said: "There is no evidence about the degree to which there's a quantitative restriction on imports from member states.
"Because they have not addressed themselves to that and produced evidence to the court on that point, it is impossible for them to say that the measure is justified as a matter of EU law."
Mr O'Neill told Lord Eassie, sitting with Lord Menzies and Lord Brodie, that minimum pricing would have a negative impact on the open market and free competition in the EU. He said the effect on producers in other member states which would be forced to raise their prices had not been considered.
The Scottish Government has said it is committed to introducing the policy to address Scotland's unhealthy relationship with drink, and save lives.
The hearing continues.