PA Podcast: Passing off alcohol with associate licensing solicitor, Joe Harvey

In this episode, licensing and gambling solicitor, Joe Harvey, discusses Safer Gambling Week.

Click here to listen to the podcast 

Find the transcript below:

Paula 

Welcome and welcome back to the Poppleston Allen podcast where we discuss licensing topics to help you and also me get a better understanding of what licensing is all about. 

Occasionally we do come across circumstances where it is discovered that licensed premises have been involved in the passing off or substitution of premium brands with cheaper ones. 

So in this months episode, I’ve brought in associate licensing solicitor, Joe Harvey, to help answer some questions regarding passing off of alcohol in the hospitality trade and the dangers surrounding it. 

Paula 

So the first question is what is passing off? 

Joe 

So passing off is the practice of misrepresenting goods or services, usually as a better quality product or service, so that customers believe that they are buying a particular product and they are usually having that product replaced for a inferior product. 

Paula 

And what are some common examples of passing off in the hospitality industry? 

Joe 

So usually in hospitality it might affect food and drink sales. So for example, you go into a bar and you ask for a Jack Daniels and Coke, they might substitute the Jack Daniels for an alternative bourbon whiskey, or indeed a different whiskey altogether together.  

Also it could apply equally apply to the Coke everyone is familiar with going into a into a pub or a bar and asking for a Coke or a Diet Coke and being asked “is Pepsi OK?” And the reason for that is because it will be passing off. If they told you that you were buying Coke and in fact, you were buying Pepsi. That’s one of the reasons why we do that. Equally applies to food sales. So you might believe that you are buying a better quality ingredient or a meal with better quality ingredients. For example, with fish, it might be that you are getting catfish rather than cod, which many would consider to be an inferior product. Many people don’t mind, but equally, if you’re buying, you should be getting what you’re paying for. 

Paula 

And how do regulatory bodies monitor and enforce laws against passing off in the hospitality industry? 

Joe 

So passing off is normally investigated by the local trading standards, perhaps sometimes extraordinarily by the police, but usually by local trading standards. And they will investigate. Usually this will be as a result of complaints, so a particular venue might have received complaints regarding passing off, or it might be an entirely random spot check of a particular premises. 

Investigations could be that they come in and inspect the premises looking for evidence of passing off, or they might do test purchases where they purchase a product, believing that they’re getting a particular product , when in fact, they’re provided with a lesser or inferior product. 

If they’re going to be really high tech about it, this can also include laboratory tests of taking away a specimen of a particular product to analyse it against a reference to make sure that it is the exact product that is being purchased. 

And if they believe that that passing off has been carried out, this as far as they’re concerned, amounts or could amount to fraud under the Fraud Act and they are able to commence a criminal investigation into that. 

Paula 

And what is an interview under caution and what should operators do if they’re requested to attend one? 

Joe 

So an interview under caution is part of a criminal investigation. It is an opportunity for the investigating, the officer or the investigating department to ask questions of a person that they believe are involved in the commission of a criminal offence and it’s a question and answer. It’ll be the sort of thing that people have seen on television many times where the investigation officer asks questions regarding the involvement in in alleged criminal activity. 

And the purpose of this is to try and obtain evidence of that criminal activity. It also allows for the exploration of any possible defences. So any operator who is facing the prospect of an interview under caution, bearing in mind that they are effectively being investigated for criminal offence. They would want to take quick legal advice on that to try and understand exactly what is being investigated and whether or not they have any cause for concern. 

Paula 

The final question is what legal actions can be taken against establishments found guilty of passing off premium alcohol for cheaper brands. 

Joe 

So if as a result off an investigation, a decision is taken to prosecute, it’s most likely that that would be under the Fraud Act for an offence of fraud. There are all alternative possibilities of food safety offences being committed, but in most cases it would likely be a fraud that is investigated and prosecuted. 

Fraud carries the risk of a financial penalty as well as custodial sentences and any individual who is identified and prosecuted does run the risk of those kinds of penalties. So it’s important that this is taken very seriously. 

So that they can properly put forward any defence that they may have, because of course one thing that the prosecution would have to prove is that this was done dishonestly and it may be a legitimate and genuine mistake on a single incident, which could be explained. 

So defences can be explored and put forward, but equally if the operator is guilty of an offence, it may be that mitigation can be looked into and understanding the circumstances as to why this particular incident was happening. 

So it’s important to get legal advice because the consequences could be really quite severe, not only for an individual, but also for the operator as well. Of course, let’s not forget the potential fulfil PR damage if the supplier and the operator has been found to be selling inferior products in preference to what the customer’s actually paying for. So it’s definitely something which needs to be taken very seriously. 

Paula 

Perfect. Thanks Joe. 

Paula 

Thank you for joining and listening to this month’s episode. Based on the conversation that we’ve had with Joe today, I hope that we were able to give you a better understanding on passing off alcohol in the hospitality trade. 

If you do have any other questions regarding this, please feel free to contact Joe on his e-mail at j.harvey@popall.co.uk or please feel free to contact any of our other licensing and regulatory solicitors where you can find them on our website at www.popall.co.uk and Poppleston Allen on all our other social media platforms. 

For further information on passing off alcohol, please also feel free to read more articles available on the Poppleston Allen website.