Info zone – Spirit substitution

Jagdeep Tiwana, regulatory law solicitor at Berwin Leighton Paisner, examines the legal provisions relating to spirit substitution and suggests what steps you should take to stay on the right side of the law.

The problem

A customer goes into a pub, orders a shot of Smirnoff vodka and is served by the bar manager. Once she has paid for the vodka, the customer announces that she is a trading standards officer (TSO) and that she is carrying out a survey on spirits. The TSO then tests the vodka using a sugar indicator stick and tells the bar manager that it is not Smirnoff. The TSO also says that it is illegal to call the vodka Smirnoff when it is not. The TSO asks for the licensee and tells him that she is seizing the bottle of Smirnoff from which her drink was dispensed and that all staff at the pub will be prosecuted.

The law

Under the Trade Descriptions Act 1968 and the Food Safety Act 1990, it is an offence to make false or misleading statements about food or drink products.

The offences can carry a maximum fine of £20,000, and anyone who misdescribes food and drink could be liable to prosecution. This includes the owner of the pub, the person actually responsible for substituting the spirits and possibly the person serving.

Generally, the TSO will prosecute the owner of the business. The owner may be able to defend such a prosecution if he can show that he was mistaken in believing the vodka to be genuine and that he took all reasonable steps to ensure it was genuine.

Expert advice

The landlord should be aware of the TSO's powers, which include:

• The power to enter any business premises and carry out an inspection.
• The power to make test purchases.
• The power to look at paperwork such as invoices.
• The power to seize evidence, for example the bottle of vodka.

Some of the powers can be used only when the officer suspects an offence has been committed, and these powers are limited to the subject matter of the offence.

It is an offence to obstruct a TSO carrying out his or her duties, but where a staff member is cautioned, it is important to note that TSOs do not have the power to force staff to answer questions or give information that is self-incriminating. For this reason, legal advice should always be sought before attending an interview.

Staff should also be instructed to check the officer's identification card, and where there is a possibility of offences having been committed, they should not answer any questions until they have spoken to a manager or company lawyer.

In this case, an offence does appear to have been committed. It is important that the licensee carries out his own investigations to find out exactly what has happened and who is responsible. For instance, he might want to commission his own tests on the vodka. If the TSO is correct and the vodka is not Smirnoff, but a cheap imitation, he could be found guilty of an offence.

Beware!

TSOs often carry out test purchases and sampling surveys of beers, wines and spirits during the Christmas and New Year period, when they believe the temptation to substitute or "water down" is at its greatest.

Check list

• Buy only from reputable sources.
• Do not be tempted to buy cheap stock from individuals - it may be counterfeit or contraband.
• Ensure staff are trained and instructed in the purchasing of stock.
• Carry out your own checks on stock periodically.
• In the event of a trading standards investigation, instruct all staff to contact a manager or company lawyer.

Contacts

Berwin Leighton Paisner 020 7427 1667
Jagdeep.tiwana@berwinleightonpaisner.com

Trading Standards Centralwww.tradingstandards.gov.uk