New ‘Sampling’ Measures of Wine Permitted

The law is full of odd little anomalies and it often takes one sensible determined individual to point out the stupidity of such things, before a long drawn out process of rebalancing the law with common sense can start.

This was the case when Dawn Davies, the Sommelier at Selfridges in London, was confronted by council officers for selling wine in sample measures not defined by the Weights & Measures (Intoxicating Liquor) Order 1988 in relation to wine.

Amongst their range they sell exclusive and vintage wines, which they were making available in sample measures. This made the range affordable and accessible, while at the same time providing those people who might be considering investing often significant sums in buying bottles, the opportunity to taste first. One sample of Château Pétrus for example would sell for as much as £32; this would effectively equate to £150 were it only to be available by the 125ml glass.

The law has finally been amended thanks to the efforts of Dawn and her supporters, a common sense approach which now allows for wine to be sold in smaller measures.

The original Weights and Measures Order allowed for wine to be sold in 125ml (small) and multiples thereof (hence the 250ml measure), 175ml (large) and multiples thereof, carafe (multiples of 125ml or 175ml) and bottles.

The amendment to the act now allows for wine retailers to sell ‘samples of wine’ in unmeasured quantities providing they are less than 75ml. However if the wine retailer chooses to serve in a specific quantity and advertise that measure, it must be in one of the measures set out in part iv of schedule 3 to the Weights & Measures Act 1985; these measures are 20ml, 25ml, 35ml, 50ml & 70ml.

This has raised a number of questions and concerns on how it affects other businesses and specifically in relation to the mandatory condition requiring licensed premises to make wine available in its smallest measure and to make notice of this availability.

In regard to this mandatory condition, the obligation remains unchanged; as although 75ml is quite obviously a smaller measure than 125ml, the mandatory condition refers directly to the measure of 125ml being the ‘smallest measure’ and is therefore not affected by this new amendment to the Weights & Measures Order.

This means that premises still need to make wine sold by the glass available for sale in a 125ml glass and must place a notice to this effect; usually a sign at the point of sale or a clear message on the menu / price list will suffice.

The amendment does not alter that obligation, but rather compliments it. In other words you must still make wine by the glass available in 125ml, but should you choose to, you could also sell wine in sample measures below 75ml; however there is no obligation to do so and customers can certainly not demand wine in the sample measure if you choose not to make it available.

On the other hand the opposite scenario is not the case, in theory were you only to serve alcohol in the sample measures the mandatory condition would presumably mandate you to also make wine available in 125ml measures; as the mandatory condition states that wine sold by the glass must be made available in the 125ml glass size.

What would be an interesting scenario, is if a prosecution for an unauthorised licensable activity were brought for breach of this mandatory condition in circumstances where only sample measures were sold…

The ‘smaller measures’ mandatory condition was brought in to curb those premises who had chosen only to sell wine in what is a rather uniquely British 250ml glass size; or one third of a bottle. Selling wine only in this size was not giving consumers the option of drinking wine within the recommended guidance issued by the government; the average 250ml glass of wine contains about 3.5 units.

The argument therefore if you failed to sell the 125ml in favour of sample measures would be a difficult one for a responsible authority to make, as you are in effect going further than the mandatory condition was set out to go. Yes, technically you would be in breach, but then you would have a strong argument to say you were being even more responsible than the mandatory condition requires, by only allowing people to drink in measures which are even smaller the those mandated as ‘the smallest’.

On the other hand if this section of the weights and measures act took 5 years to amend, maybe some responsible authority out there will decide that any breach of a mandatory condition is an unauthorised licensable activity, no matter what the cause and effect… let’s hope common sense prevails…

The amendment also made some other changes to the Weights & Measures Order:

Beer can now be sold in one third, one half and two thirds of a pint; and multiples of one half of a pint.
Fortified Wine in 50ml, 70ml or multiples of either.

One word of warning; these sample measures must still be accompanied by responsible alcohol retailing and using this amendment to sell ‘shots of wine’ or encourage drinking games using the new measures would breach the mandatory condition in respect of ‘irresponsible promotions’, as well as undermining the licensing objectives. This could in turn result in heavy fines, potential imprisonment and a review of your premises licence which can ultimately lead to premises licence revocations.

For once common sense has won the day and wine merchants and sommeliers across England and Wales owe a debt of gratitude to Dawn Davies.

Weights and Measures (Specified Quantities) (Unwrapped Bread and Intoxicating Liquor) Order 2011 – House of Commons

Date – 10^th January 2012

Submitted by – Peter Mayhew

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