Super Strength and Competition Law - The Latest

We periodically hear of council led initiatives for licensees not to sell so called "super strength" alcohol. In practice this tends to relate to off licences and to mean beers or similar with an ABV over 5% or thereabouts. Additionally, local press have found the stories very newsworthy and the implementation of such initiatives have made the headlines. Since around 2012 an increasingly large number of councils have sought to introduce these "voluntary" initiatives whereby groups of retailers agree not to sell certain products.

There has been a very recent development arising out of evidence given by The Competition and Markets Authority (CMA) to senior MP's at Parliament recently.

We understand that in evidence given by a representative from the CMA it was stated "If there is a co-ordinated withdrawal of a particular product there is a competition law risk."

These initiatives are often referred to as being voluntary but we have always had concerns about such arrangements and whether in fact there is a level of persuasion being implemented by the Local Authority who is of course the Licensing Authority. Retailers should think very carefully before entering any such arrangement, even if the arrangement is truly voluntary it would still be a "co-ordinated withdrawal" as it would not be unilateral. Thus they could be party to an act which restricts completion. If the condition was imposed by a Licensing Authority at say a Review then it would be a different matter, although that clearly raises different issues.