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Morning Briefing for pub, restaurant and food wervice operators

Wed 11th Sep 2024 - Legal Briefing

Rumour has it – cigarettes and alcohol by Leigh Schelvis

“Rumour Has It” was not only a romantic comedy featuring Jennifer Aniston and Kevin Costner in 2005 – and a chart-topping single for Adele in 2011 – but also aptly describes the current state of affairs in the hospitality sector since last month’s Propel Legal Briefing. The sector has been buzzing with speculation, both from the public and from Downing Street. It’s not just the usual gossip; these whispers are reshaping the landscape of hospitality in significant ways.

One rumour that became a long awaited reality last month was the Oasis reunion, with concert dates announced for Cardiff, Manchester, London, Edinburgh and Dublin. Tickets went on sale recently, sending fans into a frenzy and trying their best to battle for tickets. Many faced lengthy queues, Ticketmaster crashes and unreliable internet connections as they scrambled to secure tickets to one of the now 18 confirmed reunion shows across the UK and Ireland. Adding to the frustration, many fans found ticket prices higher than expected, and the fees left your wallet feeling like it had just been hit by a “Champagne Supernova”. While some were willing to “Roll With It”, others were unable to follow the advice to “Don’t Look Back In Anger”.

There has been a mix of opinions surrounding the Oasis tour, particularly regarding the ethics of dynamic ticket pricing, and since then, the Competition & Markets Authority has even gone as far as launching an investigation into Ticketmaster’s handling of Oasis ticket sales. However, lost amid the controversy are the positive remarks from industry leaders about the potential boost the tour will bring to local economies – with not just the origin venues benefiting. Bars and pubs near the concert venues are expected to see increased foot traffic from pre and post-show attendees, while hotels (which are able to bring in dynamic pricing strategies on hotel rooms) stand to benefit from fans travelling to different cities, turning the concerts into weekend getaways. During Taylor Swift’s Eras tour, it was estimated that fans contributed an impressive £997m boost to the UK economy, highlighting the significant impact such events can have on hospitality and tourism.

Fans did everything from visiting the pubs she name dropped in her songs to attending themed quizzes or classical reimagining of her songs at smaller local venues. The “Swiftonomics” (yes, it is a thing!) undeniably swept across the country, and while music tourism is not new, this stands out as one of the most significant examples in recent years. These mighty tours display renewed focus on the importance of live music in British culture and its connection to the hospitality industry. Live music venues suffered greatly during the pandemic, with many iconic spaces facing the brink of closure or shutting down entirely, but these concerts are a celebration of UK live music and offer a chance to reignite public enthusiasm for attending live shows, especially at grassroots venues that need support the most.

Another piece of news that has shocked the nation and ignited a heated debate between members of the public across the country is the government’s proposed plan to extend the smoking ban to certain outdoor areas, including beer gardens and other external parts of hospitality venues. The Sun has published, what was initially a rumour, the proposed ban would apply to these external spaces. The aim is to reduce smoking-related deaths from second-hand smoke and ease pressure on the NHS. While the potential health benefits are clear, the hospitality industry as a whole is not thrilled, fearing the ban could drive customers away from their local pubs. It certainly has the sector in a spin and this ongoing “Cigarettes and Alcohol” debate about whether the decision should be left to individual premises or dictated by the government shows no signs of slowing down.

Nearly two decades ago, the smoking ban in indoor public spaces was introduced by the Health Act 2006 and enforced from July 2007, and it was actually accepted with seemingly little fuss. This news has stirred up much more controversy. Though some support the move, many in the licensed trade argue that it represents an overreach, creating a “nanny state” with more regulatory hurdles for an industry already grappling with the aftermath of covid-19, the cost-of-living crisis, employment shortages, the Ukraine war and other economic pressures. While many of us were hoping for positive news on VAT relief and legislative adjustments to support the sector, we’ve instead been met with potentially more complications.

As echoed by prominent hospitality commentators, as well as John Gaunt & Partners’ own Michelle Hazlewood (see Michelle’s post, dated 29 August 2024), there is concern about the unintended consequences of this proposed policy. One knock-on effect is the potential increase in noise nuisance and litter on our streets, as smokers are pushed to seek alternative spots for a quick drag. Under the Licensing Act 2003, licence holders are required to prevent public nuisance, which includes managing noise and litter. Most venues have measures in place, either through licensing conditions or best practices, to address these issues effectively.

Licence holders are experienced in controlling noise from their premises, including beer gardens, and keeping outdoor areas clean. By relocating smoking outside of venues entirely, there’s a risk that the government might not only deter people from visiting our food and drink establishments – at a time when we need to encourage their return – but also place additional pressure on local authorities to manage an expected rise in street-level nuisance. It’s a fact, not a rumour, that local authorities are already underfunded and stretched thin.

I was surprised to learn about a national pub brand, in one of its London sites, that has now begun clearly signposting and segregating its smoking and non-smoking areas in the beer garden. These signs weren’t there before, which makes me wonder if there’s an underlying message being sent by the sudden implementation newly designated areas. Are there alternatives to a full smoking ban on premises? I imagine many operators think so and might be seeking a compromise. The ongoing debate suggests that while the health objectives are valid, the general opinion seems to be that the impact of such measures are complex and contentious and require further thought. 

It was also rumoured that with the new Labour government’s focus on promoting health, we might see a fifth licensing objective introduced in England and Wales. This is a topic that has been discussed in government circles before. In Scotland, the licensing legislation already includes “protecting and improving public health” as one of its objectives. Although this hasn’t yet been adopted in England and Wales, the current emphasis on health, particularly regarding reducing alcohol consumption, raises the possibility of such an objective being implemented here. A potential obstacle is that the Licensing Act 2003 regulates the sale of alcohol but does not control consumption, except for prohibiting sales to intoxicated or underage individuals.

Linking with this, it has been suggested that ministers could bring in a minimum unit (alcohol) pricing (MUP) in England. MUP is in force in Wales and Scotland at 50p per unit, but this is set to increase in Scotland to 65p per unit from the end of September 2024. It should be noted that this policy also received criticism from the Scottish trade. It is questionable that MUP policies are effective and only seek to add further negative consequences for businesses, potentially even driving some people towards purchasing illicit alcohol. 

This past month has seen the rumour mill working overtime in the hospitality sector, leading to a whirlwind of discussions and speculations within the industry (my LinkedIn feed, in particular, has seen its fair share activity). But until the government actually implements new policies, bills receive royal assent or Blur reveal a full-blown reunion tour rather than just a one-off gig, we’re left with a lot of intriguing chatter and speculation about what is to come. Until then, the situation remains firmly in the realm of “Rumour Has It”.
Leigh Schelvis is senior solicitor at John Gaunt and Partners

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