One of the most visual changes brought about by the Sale and Supply of Alcohol Act 2012 (SSAA) was the requirement for supermarkets to only display alcohol in a “single area” inside the store. As supermarket licences are renewed, they are progressively moving to the “single area” model and aisle-end and big instore displays are being removed. This was greeted with much glee from the nostalgic’s who miss the days of pushing past the plush velvet curtain and into the R18 section of the video library. For the modern day man (and grocer) it has posed a modern-day conundrum though – where do they stock non-alcoholic beer?
Any beer that is less than 1.15%abv is not “alcohol” as defined in the SSAA and therefore can be displayed in any non-restricted part of the store – aisle-ends and carbonated soft-drinks included. However the real question (for those that like to display products where a customer is most likely to look for them) is – can they be displayed within the “single area”? We examine the cases for and against.
The case for ranging non-alcoholic beers in the “single area”
The case for ranging is built around the argument that the operative provision for what a supermarket can and cannot sell is section 58. Section 58(1) states that a supermarket can sell beer, fruit wine and grape wine that complies with the appropriate NZ food standard for those products. There is no requirement in the Food Standards Code for “beer” (or grape or fruit wine) to contain any amount of alcohol. Therefore it is clear that the SSAA allows for the sale of non-alcoholic beer.
Section 58 is, however, inconsistent with sections 112-115 which are the “single area” provisions. These provisions do not talk of the permitted categories of beverage (beer, grape and fruit wine) but instead use the generic term “alcohol”. It is understandable that Parliamentary drafters cut this corner as it is much more efficient to simply say “alcohol” than repeat the more verbose “beer, grape and fruit wine as defined in the Food Standards Code” (and even then I am leaving out mead and food flavourings which are also permissible alcohols for a supermarket to sell but I am too lazy to repeat each time).
To resolve an apparent inconsistency you typically consult the Object and Purpose of an Act to sense-check an interpretation. It is entirely consistent with the Object and Purpose of the Act that non-alcoholic beers should be able to be displayed in the “single area”.
The Object of the Act is that the sale and supply of alcohol should be undertaken safely and responsibly, and the Purpose of the Act is to provide a reasonable system, the administration of which helps to achieve the Object of the Act. Displaying non-alcoholic beers in the single alcohol area is consistent with this Object as it encourages the purchase of non-alcoholic beers when alcoholic beverages are being purchased which has to have the result of encouraging the safe and responsible sale and consumption of alcohol.
This interpretation is further endorsed by the words of section 112(1) which sets out the purpose for the single area restrictions. Section 112(1) states that the purpose of the single area is to “limit (so far as is reasonably practicable) the exposure of shoppers in supermarkets.. to displays and promotions of alcohol and advertisements for alcohol.” [emphasis added]
If a non-alcoholic beer does not qualify as “alcohol” it is at least likely to be considered an advertisement for alcohol (if released under a known beer brand) and therefore, by the words of section 112(1), should be displayed within the alcohol area.
So the case for display in the single area concludes that beers and wines that meet the legal definition for “beer”, “grape wine” or “fruit wine” under the Food Standards Code, but contain less than 1.15% abv, are able to be displayed in the single area of a supermarket.
The case against ranging in the “single area"
This argument is very straightforward – the clear words of section 112-115 refer to “alcohol”. “Alcohol” is defined as products containing more than 1.15% abv. Therefore anything containing less than 1.15% cannot be sold or displayed within the single area. The case against display in the single area opens and closes with the literal meaning of the clear words of the Act. On the face of it, case closed. But read against section 58 and the Object and Purpose of the Act, it simply does not reconcile.
The common-sense test
This isn’t a legal test sadly but is the clearest tie-breaker – ask anyone where they would expect non-alcoholic beers and wines (that actually are beers and wines) to be found in a supermarket and I’d bet good money they would say the alcohol aisle. They are designed for adults wanting a low or non-alcoholic alternative to beer and wine and they expect to find them where they find the other beers and wines.
To alleviate the confusion, the Minister of Justice has confirmed to the FGC that work to address these issues is being progressed and she hopes to introduce a Bill shortly. That’s great news. In the meantime you need to determine which side of the debate you’re on.
Matt Wilson, Corporate Relations Manager, DB Breweries Ltd.