Trading standards: Protection against low ABVs
There has been a whole raft of enforcement action in the Brighton area over the past year, which seems to have mainly concentrated on off-licences and also included situations where premises were selling bottles where duty had not been paid.
In the cases in Brighton the failings discovered were dealt with through the review process and a number of licences have been revoked. We have also had direct experience of campaigns in Portsmouth, Nottingham, Teesside and York where the prosecution route has been preferred.
The range of culpability when low ABV is discovered is quite wide. It will obviously be an aggravating feature in the minds of both prosecutors and sentencing courts if it is felt an operator has been deliberately watering down spirits for profit.
This might typically be felt to be the case if the watering down was occurring in a high-volume line, such as house vodka or house gin. It would be considered less likely that the low ABV was a result of deliberate watering down if, for example, the problematic spirit is a low-turnover item, such as a high-end whisky, gin or Cognac, of which only the very odd measure is sold.
Here the problem is more likely to be one of poor storage conditions where, for example, changes in temperature are caused by placement of the bottles on a backlit bar. Failure to cover these bottles in between occasions where measures are served may lead to a combination of evaporation and condensation having a detrimental effect on the ABV.
The situation may be further aggravated by shortcomings in staff procedures. If the free-pour method is used and the pourers are washed but not dried properly before they are replaced, then this may cause an accidental introduction of water into the spirit in question. Equally, if optics are washed and replaced wet then a similar effect may be witnessed.
In circumstances where the on-site checks by trading standards officers give cause for concern, they will normally remove a sample of the liquid in question for further analysis at a laboratory. A second sample should be left with the operator so that they can undertake their own testing in due course should they wish to challenge the officer’s findings. It is therefore important to properly secure such a sample so that comparative analysis may be undertaken.
Prevention is, of course, always preferable to subsequent contest and therefore operators should be careful to adopt and develop proper policies, procedures and training to prevent this sort of thing arising. Regular stock taking combined with random testing of spirits by the operators themselves or their stock takers will at the very least provide powerful mitigation in the event of a prosecution, if not a due diligence defence.
The best-case scenario would clearly be that the operator spots the problem through their own stock taking and testing prior to any enforcement visit highlighting the issue for them. Testing kits can be purchased on the internet for use by an operator’s area managers and many stock takers are able to offer this service in any event.
If the worst comes to the worst and enforcement action is taken, either by review or prosecution, then the production of written company policies and training records that sought to mitigate the risk should also mitigate any penalty.
As mentioned, the risk of revocation is high in a review in such circumstances. If a prosecution is undertaken then offences are likely to have been committed under the Food Safety Act, as well as the Trade Descriptions Act, and financial penalties per bottle can run to £20,000.
Costs claims in these circumstances by the prosecuting authority against the operator are normally high as well and the overall bill can, therefore, run to several tens of thousands of pounds when one factors in the legal costs of defending the proceedings in whichever way is possible.
All of this is on top of some significant adverse publicity, which may well cause customers to steer clear of any venue where there is a suggestion that an operator is either ripping off its customers or being entirely negligent in the way in which it stores the drinks that it sells.
