Dr. Ollie Bartlett, Maynooth University

After nearly three years of discussion, the Irish Public Health (Alcohol) Bill has been passed by the Irish Parliament. The Bill aims to address Ireland’s significant alcohol-related harm through five key measures: minimum alcohol pricing; stricter labeling; advertising restrictions; separating alcohol from other retail products; and limitations on alcohol sales and supply.

While lauded as “groundbreaking” by Health Minister Simon Harris, some argue that elements of the Bill, particularly those related to the free trade of alcohol within the European Union, might not be legal. This piece examines these claims, often made by those with a financial stake in the alcohol industry, and explores how they misrepresent EU internal market principles to pressure governments into weakening public health protections. It will demonstrate that the Irish Public Health (Alcohol) Bill does not violate EU law. In doing so, it will show how governments may misunderstand European public health laws and policies, leading to ineffective regulation.

Critics suggest that the Bill might be viewed as an unjustified violation of Article 34 TFEU, which prohibits measures that restrict the free movement of goods, because any substantial aspect of it could potentially limit the trade of alcoholic beverages. However, Article 36 TFEU (which provides exceptions to Article 34), as well as consistent rulings by the Court of Justice of the European Union (for example, Aragonesa, Bacardi France, Ahokainen and Leppik, Rosengren and Scotch Whisky Association) indicate that a measure controlling alcohol can be adopted even if it restricts trade, as long as it is proportionate.

Each of the Bill’s five interventions can be justified as balanced and appropriate. As indicated by the Scotch Whisky judgment in the case of Scottish minimum unit pricing (MUP), minimum pricing regulations can be consistent with EU law. Although this decision doesn’t automatically make Irish MUP legal, demonstrating that MUP is an appropriate and essential measure in Ireland shouldn’t be challenging. This is due to the decision’s conditions, the Irish government’s thorough impact assessment, and Ireland’s existing high alcohol taxes.

The inclusion of cancer warnings on alcohol labels sparked a heated last-minute debate. This measure has faced strong opposition, with claims that it restricts trade, harms the reputation of Irish products, and disrupts the EU’s single market. While mandatory health warnings on alcoholic drinks haven’t been directly addressed by the Court of Justice of the European Union, the court has frequently deemed labeling and providing information as acceptable public health measures. (For example, Van der Veldt, Commission v Germany, Neptune Distribution). Indeed, the Court of Justice of the European Union stated that ‘labelling is one of the means that least restricts the free movement of products within the [EU]’.

Given the Court of Justice of the European Union’s comments in the Philip Morris case regarding the carcinogenic nature of tobacco, the significant evidence of alcohol’s carcinogenic properties (it’s the third leading cause of death and illness in Europe, after smoking and hypertension), and that the method of intervention does not impact the essence of intellectual property or business rights, requiring warnings about alcohol-related cancer on product labels is reasonable. While cancer warning labels might test the boundaries of what is needed for public health protection, they don’t overstep them. This is especially true given the evidence of positive outcomes, and EU Member States’ pledge to the WHO to explore tougher alcohol labeling rules.

Arguments against such labeling, suggesting it would put Ireland at a commercial disadvantage, are less convincing when considering that nine other nations have implemented stricter alcohol labeling. The argument that Irish goods will be unfairly labeled is moot, as the rule applies to sales within Ireland, not exports. Finally, claims that stricter labeling would severely disrupt industries are exaggerated. This is because alcohol is exempt from food labeling regulations, resulting in no standardized rules, the industry itself has rejected a unified EU alcohol labeling system, and EU nations already have diverse labeling requirements, including mandatory health warnings in France.

The Court of Justice of the European Union has previously upheld targeted advertising limits as appropriate. The Bill’s limitations on advertising are not meant to be a complete ban. As per Court of Justice of the European Union case law, advertising regulations are acceptable if they are focused and restricted in scope. Public health-focused retail limitations are likely covered by the exception to Article 34 TFEU established by the _Keck_ ruling – any non-discriminatory “selling arrangement” is outside Article 34 TFEU’s scope. Recent tobacco-related case law shows that the Court of Justice of the European Union is likely to categorize public health interventions related to unhealthy product sales as selling arrangements and is not overly eager to interfere with individual nations’ decisions in this area. The same applies to limits on alcohol sales and supply, primarily targeting price promotions like “buy one get one free.” These would likely be seen as selling arrangements, falling outside Article 34’s scope.

Therefore, it’s quite evident that four out of five interventions in the Bill align with EU internal market regulations. Moreover, a strong case can be made for the compliance of the Bill’s labeling provisions as well. EU law supports the Irish government’s right to enact these measures. In fact, the Commission, while raising questions about the labeling aspects of the Bill, did not criticize them as opponents have. Instead, they used their feedback to underscore Ireland’s right to implement proportionate public health measures.

Arguments against the Bill’s compatibility with EU law overlook that the internal market acknowledges potential conflicts between free trade and a government’s duty to safeguard its citizens. European Union Treaties allow Member States to proportionally limit economic freedoms to address urgent social concerns. The Court of Justice of the European Union has consistently supported this in alcohol-related cases. Furthermore, both the right to health and the right to conduct business are equally protected under EU fundamental rights law. The Court of Justice of the European Union has ruled that the right to health takes precedence over the commercial interests of industries contributing to public health crises.

Those criticizing the Public Health (Alcohol) Bill wrongly believe that the EU’s internal market prioritizes business interests over societal concerns. This is incorrect – the internal market ensures free movement but doesn’t give businesses an automatic advantage when they perceive threats to their interests. EU law doesn’t prevent member states from protecting their populations. It allows them to do so proportionally, even if it disrupts existing cross-border trade.

However, even Member States can misinterpret EU public health law, leading to regulatory failures, where neither of two regulatory actors addresses an issue due to mutual inaction. One key debate around the Public Health (Alcohol) Bill concerns implementing its minimum unit pricing (MUP) provisions. Until recently, Minister Simon Harris maintained that the MUP provisions would only be enforced once Northern Ireland enacted similar measures. This stance stemmed from the view that Irish public health policies shouldn’t negatively impact cross-border alcohol trade. While aligning with Northern Ireland makes political sense given the shared border and the desire for a unified approach, legally, the Court of Justice of the European Union has repeatedly stated that ‘the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate’.

EU law doesn’t require Ireland to match its policies with other member states or refrain from implementing a justified trade barrier due to potential market disruptions. Ireland can protect its people as it sees fit, regardless of other nations’ choices, as long as trade barriers are proportionate. Simon Harris’ recent shift, suggesting Ireland might not wait “forever” to implement MUP, is a welcome change.

Yet, some aspects of the Bill haven’t escaped regulatory pitfalls. While provisions on alcohol advertising are already commendable, they could have been stronger. In the final stages of debate, amendments were suggested to better shield children from online alcohol advertising. This was in response to substantial evidence highlighting children’s susceptibility to digital and other non-traditional advertising forms, which most Member States barely regulate. However, despite agreeing with the intent, Minister Harris rejected these amendments. He argued that addressing online advertising is better suited for EU-wide action. Unfortunately, this ignores that the EU recently declined to strengthen online alcohol advertising rules. The Audiovisual Media Services Directive reforms leave EU provisions on cross-border alcohol advertising untouched and even loosen some rules on advertising services, potentially harming children. The Commission has repeatedly stated it won’t propose legislation to standardize cross-border alcohol trade.

For this to happen, individual Member States must take the lead in regulating the alcohol industry within their borders. The EU’s authority to regulate the internal market relies on the existence of trade barriers, which only arise through differing national regulations. At present, the regulation (or lack thereof) of online alcohol advertising is consistent across Member States – it’s virtually non-existent. Variations in national regulations would pressure the Commission to adopt common standards and bolster the Member States’ call for a unified EU alcohol strategy. Thus, the Irish government’s stance advocating for EU-led action has unfortunately led to a regulatory failure on a vital public health issue.

To summarize, the Public Health (Alcohol) Bill is a progressive piece of legislation addressing the substantial evidence of alcohol-related harm in Ireland. It falls within the Irish government’s purview to adopt and contains interventions that justifiably limit free movement. Claims of non-compliance with EU law disregard the fact that the EU internal market safeguards a Member State’s right to protect its population, just as it protects the freedoms of traders. Misinterpretations of this right, or the realities of EU-level public health policy, could lead to inaction and ineffective regulation. The Irish government has taken a significant step towards reducing alcohol-related harm in Europe – one that other Member States should be encouraged to follow.

Barnard & Peers: chapter 12, chapter 21

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