Dáil Éireann Debate, Wednesday - 3 November 2004
87 Dr. Upton asked the Minister for Justice, Equality and Law Reform the reason provisions under the Intoxicating Liquor Act 2003, providing for the traceability of alcohol sold on a takeaway basis have not yet been implemented; when such measures will be introduced; and if he will make a statement on the matter. [27274/04]
View answerThe position is that section 22 of the Intoxicating Liquor Act 2003 contains provision for the making of regulations specifying particulars to be affixed to containers in which intoxicating liquor is sold for consumption off the premises which are adequate to enable the licensee and the licensed premises concerned to be identified. The main reason for seeking to implement a labelling requirement by means of regulations is that this method permits notification of the European Commission in accordance with the EU technical standards (transparency) directives with a view to avoiding any later challenge to the legislation on the grounds that proper procedures had not been followed.
As regards the making of regulations, I have recognised from the outset that while the labelling of containers with a view to combating under age consumption of intoxicating liquor is an attractive idea, significant challenges would need to be overcome to render it effective in practice. These challenges arise under two headings. First, practical difficulties will be encountered where several individual containers are packaged together for sale, for example, a six-pack of bottles, a plastic-wrapped tray of cans, or a nailed wooden box containing bottles of wine. This raises the question of whether the label should be attached at the point of sale or earlier in the distribution chain. Attaching labels at an earlier stage is likely to increase distribution costs and create logistical difficulties for importers and distributors. In the case of imports from EU countries, such additional labelling requirements could be regarded as infringing internal market rules. Also at the practical level, there is the possibility of labels being removed, or being made non-legible, after sale. The possible transfer of the contents to another unmarked container cannot be ruled out either.
Second, from an enforcement perspective it is clear that possession by an under age person of a labelled intoxicating liquor container does not in itself constitute proof that the product had been illegally supplied to that person by the licensee whose particulars appear on the container. The container may have been sold to a person over the age of 18 in good faith by the licensee before being passed on to the under age person. It may have passed through several hands before finding its way into the hands of the underage person.
Issues relating to the evidential value of being found in possession of a labelled container were raised during consultations on implementation of section 22 of the 2003 Act and my Department subsequently raised them with the Office of the Attorney General. The Attorney General's office has expressed serious doubts about the evidential value of possession of a labelled container and doubt is, therefore, cast on the utility of any regulations that might be made under section 22 of the 2003 Act.
One possibility that could be considered in the context of future legislation would be a presumption that any intoxicating liquor container found in the possession of an under age person had been purchased by that person from the licensee identified on the container until the contrary was proved. However, the Attorney General's office has also advised that such a proposal would raise serious constitutional issues and would run the significant risk of being found to be inconsistent with Article 38 of the Constitution.
For these reasons, I do not intend to make regulations under section 22 of the 2003 Act at this time. I will, however, give further consideration to this matter in the context of the forthcoming Bill to codify the licensing laws.
