Branding: avoid making any substitutes

By Peter Coulson

- Last updated on GMT

Related tags: Licence, License, Officer, Ten

Coulson: warns licensees to be careful with branding
Coulson: warns licensees to be careful with branding
Brand substitution has been around for a long time and needs to be actively discouraged, for a number of reasons, says Peter Coulson.

The careful use of substitutes is one of the great talents of top football managers these days. The word "inspired" regularly crops up, especially if the new guy scores.

But substitution is not necessarily a good idea for a pub manager.

The Licensing Act now includes "tipping" as a relevant offence for personal licence holders. Brand substitution, as it is properly known, has been around for a long time and needs to be actively discouraged, for a number of reasons.

However, inclusion in the list of offences in the Licensing Act does not affect the main law, which already makes it a criminal offence to supply inferior or different products under the guise of well-known brands. What it does, however, is to include convictions for such devious practices among the list of offences for which a personal licence can be refused or cancelled.

It is still difficult to be precise on how much of this goes on within the various sectors of the trade. A survey carried out some time ago indicated that it could be as high as one in 12 outlets that were substituting at least one brand. That's 8% and represents a great deal of money.

Recent reports of dubious contents in alcohol bottles bought in good faith from suppliers will not directly affect the trade — offences of this type have to be committed "knowingly'' and you are entitled to rely on the bottle to be accurate and truthful about the contents.

However, the fact that a conviction for this type of offence could directly affect the licence is an added deterrent under the new law. But it is not altogether new.

Readers may remember the story of the former chairman of the Birmingham bench — a well known and controversial figure in his time — on being advised of a conviction for this practice, hauling the hapless licensee before him and refusing to renew his licence.

"Pouring over is theft, and I won't have thieves running my pubs!" he intoned.

But it is not just alcohol that is involved. Producers of various products, including of course cola, are equally enraged when they find evidence of passing off.

They can take direct action themselves for damages against the licensee, and if he has not given clear instructions to staff, he could be held personally liable.

So be careful with substitution, or you may find yourself scoring an own goal instead!

Q&A

Getting rid of conditions

Q.​ When the previous owner started this bar, the magistrates at the time set a whole range of conditions regarding the way it was run, which now seem very unfair compared with other outlets in the district that have been granted licences more recently. He only converted the existing licence when the law changed. Do these conditions stay on the licence forever, or is there any chance of getting them removed?

A.​ You do not tell me what these conditions are, but, I have to say, there are a number of pubs that now find themselves in something of the same position. They may have assumed that these original conditions must stay with the licence. But this is not true.

While some restrictions fall within the licensing objectives, there are a number imposed by the justices under their old regime that are of doubtful relevance. At the time they may have had their own agenda — for example, not wishing an additional full on-licence to be established — but that is no longer part of the objectives of the Licensing Act, unless there is a policy on cumulative impact in the area in which you operate.

You may apply for a minor variation of the licence simply to remove existing conditions. This is a new measure that was introduced only recently, specifically to deal with situations like this, among other things. You can apply on this at any time, and if the conditions are not really relevant to the licensing objectives, then there may be no objections raised, either by local residents or the responsible authorities. However, as you have to advertise a variation on the premises, local residents may take the opportunity to raise some issues. The best advice is to contact the solicitor who helped you in the first application, to point out the sensitive areas that may cause problems.

Licence copy on site

Q.​ Is it a requirement to keep the actual licence on display somewhere? We have the "summary" posted up by the entrance door, but we had a recent visit from a local police liaison officer who said that the full licence (not a copy) had to be on hand for inspection.

A.​ You do not have to keep the actual licence on display, but it must be kept on the premises for production if a police or licensing officer asks to see it. That is a requirement of the Licensing Act.

The whole reason for the extra paperwork of having a licence summary as well as the premises licence was that the summary would give basic details and must be displayed at all times. However, people have tended to forget that the actual full licence, or a duly authorised copy, must be retained by the person actually operating the premises, even if they are not the premises licence holder themselves. This may happen when the brewery or operating company is the holder of the premises licence. It must not retain the licence at its headquarters unless it can let you have a certified copy to produce when needed.

Drinking up on a TEN

Q.​ Is there any drinking-up time on a temporary event notice? Our local police say you have to close at the time stated on the extension, if it is a one-off.

A.​ This is not strictly true. The TEN is granted for a "licensable activity", in your case the sale of alcohol. You must not sell outside the hours applied for, but there is nothing to prevent a period for drinking up. Unless there was disorder on the premises, there is no power for the police to order you to close exactly at the time stated on the TEN. It is up to you how much time you give the customers who are consuming their last drinks, always allowing for any actual closing time on the premises licence.

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