Balancing Healthful and Political Priorities

A visitor’s perspective on the fears and uncertainties of Brexit on the food and drink industry in Scotland, by Kristin Newby.

Kristin is a postgraduate law student at Texas A&M School of Law, under the guidance of U.S. lawyer and WS associate member Randy Gordon. She joined the Society for a 2 week internship at the end of May 2018. In this feature she reflects on legal considerations and challenges facing the food and drink industry in Scotland.

One of the many rewards of global travel is the ability to experience cultures different from your own. Any time I travel to Europe, a large part of my experience in local culture inherently comes through my daily use of public transportation.

As a native Texan where participating in public transportation is not as much of a cultural norm, Scotland’s efficiently run and relatively widely used public transportation system of trains and busses is undeniably a part of my Scottish culture experience. Along with these experiences come the public conversations held without regard to privacy:

“Did you hear about the sugar tax on those drinks you like?” “Ay, but that probably just means the drinks will be filled with other sweeteners, chemicals and so – not any better and probably worse for me.”

“What do you think about the new (minimum) pricing law for alcohol?” “I doubt it will make much of a difference, people will drink if they want to drink – even if they cannot afford it.”

Admittedly, my personal interest in the Food and Beverage industry makes my ears more attuned to conversations on such topics. I find the evident prioritization of Scots’ physical health vis-à-vis laws intended to curb sugar and alcohol consumption both inspiring and commendable.

On one hand, to hear the general public discussing these new laws in terms of how they personally affect individuals of society, I am inspired by Scots’ attentiveness to politics. (I cannot say that I am left with the same sentiment from my experiences on the train between Dallas and Fort Worth in Texas.) On the other hand, I am deflated that the public outlook in Scotland seems a bit pessimistic in terms of the benefits such governmental laws are intended to effectuate. (Ah ok, there’s some familiar “American” cynicism toward politics.)

Regardless, health issues related to the Food and Drink industry are seemingly at the top of people’s minds. But the plate doesn’t stop there.

 Kristin Newby in the Signet Library (© Albie Clark/The WS Society).

Kristin Newby in the Signet Library (© Albie Clark/The WS Society).

In total, I spent more than a month in Scotland at the beginning of the summer. Nearly every morning, headlines in The Scotsman touched on the whisky, livestock, dairy, and fresh-produce industries, either in a local-business context or as part of the bigger “Brexit-and-the-economy” conversation. As an American law student, I know these industries face legal uncertainties due to Brexit and its surrounding trade deals. As an everyday traveler, I am curious what fears and concerns my co-passengers on the bus or train may harbor from a more individualized perspective.

With Brexit around the corner and the UK set to leave the EU in March of 2019, industry leaders and legal minds alike are certainly considering how splitting from the EU will practically affect the Food and Drink industry of Scotland and the UK, as a whole. What I wonder is how the “Brexit effect” on local industries will impact Scottish (or UK) culture more generally.

First consider that, similar to the origins of the minimum-unit-pricing system for alcohol and origins of the sugar tax, Brexit has at least some altruistic roots. One positive aspect that some (if not many) politicians believe will stem from Brexit is the ability for the UK to negotiate trade deals apart from and without the burdens of EU laws. For the Food and Drink industry, freedom from EU law may actually translate to trade deal negotiations requiring substantial changes to industry standards.

Would these changes to the EU standards currently regulating the industry have immediate effects on Scottish food and drink products? Will effects be on quality, local availability, or price point? Or will effects be less immediate and seen locally only after Scottish products’ competitiveness in the marketplace changes?

I CERTAINLY HOPE ANY SACRIFICES MADE IN LIEU OF A POST-BREXIT TRADE DEAL DO NOT COME AT THE COST OF CULTURE.

Put differently, will a change of standards for the sake of an international trade deal appreciate or depreciate Scots’ food and drink goods and, thereby, positively or negatively affect local industries?

In a nostalgic and perhaps pessimistic sense, one could fear that lowering standards for the sake of international trade may lead to such a change in local industries’ relevance that local culture and a sense of origin becomes lost. Sentimentality aside, to me the question ultimately boils down to: “What is the real cost of possibly changing the standards currently regulating the food and beverage industry, and who decides what and how to pay?”

A common sentiment in the Scottish legal community is that the only certainty around Brexit is uncertainty. I suppose my train and bus co-passengers may be just as uncertain about the effects of Brexit. I certainly hope any sacrifices made in lieu of a post-Brexit trade deal do not come at the cost of culture. But before I lament over the not-yet-lost travel reward of experiencing different cultures, let us consider some of these post-Brexit uncertainties more acutely in the context of a few main areas of Scotland’s Food and Drink industry.

First, a drink: WHISKY

Recently, after traveling all the way up to the UK Supreme Court, litigation in Scotch Whisky Association v. The Lord Advocate failed to halt the May 1st implementation of Minimum Unit Pricing (MUP). Remaining sympathetic to the certainly discriminatory effects that MUP will have on some alcoholic beverage producers and exporters, the Lord Justices nonetheless unanimously upheld MUP system implementation because the Scottish Parliament and Government decidedly prioritized combatting alcohol-related mortality, hospitalization, and other alcohol-related health harms.

While this may be a win for prioritizing the physical health of the Scottish populous, uncertainty abounds regarding exactly how and to what extent Scotland’s whisky industry will be impacted by this set of legal outcomes.

What is for certain, however, is the importance of the whisky industry, not just to Scotland but also to the UK. Not only does the Scotch whisky industry support thousands of local jobs, including in rural areas of the country, but a 2017 analysis also reflects a record high annual increase of £4.37 billion in Scotch exports. These exports include single malts and blended Scotch, which each saw growth in the top export markets including the EU – holding the number one spot – and the U.S. Without the economic contribution of the Scotch whisky industry, the UK trade deficit would be worse off than present, to the tune of more than £157 billion.

Not only are whisky exports growing, but the coinciding trend is presumably that Scotch whisky drinking is also growing. But if that growth is not within the Scottish community – recall newly implemented MUP provision seeking to curb Scots’ drinking habits – then where is Scotch whisky going? Likely to the aforementioned top export markets. So while Scotland’s government wants people to drink less, importers like the rest of the EU and the U.S. perhaps want to encourage consumption.

This apparent encouragement for outsiders to drink more comports with the list of ever-growing investments in whisky distilleries including: Diageo’s £35m investment to bring Port Ellen and Brorar distilleries back into production, Edrington’s £500m investment in building a new distillery for The Macallan, Halewood International’s £7m investment in a project to bring John Crabbie whisky back in production, and the £10m investment in a community owned distillery in Lochboisdale in the islands of Sout Uist Eriskay and Benebecula.

So not only has the whisky industry been of great importance to Scotland’s job market and economy, it appears it will continue to be a big player in the future given all of these investments.

THE U.S. WILL LIKELY SEEK TO ELIMINATE STANDARDS SUCH AS WHISKY-AGING REQUIREMENTS THAT ARE CURRENTLY UPHELD UNDER EU LAW AS THE SOLUTION TO GROWING THE WORLDWIDE – BUT MOSTLY ITS OWN? – WHISKY INDUSTRY.

Now put all of these circumstances in the context of Brexit, and one sees how the remaining challenge is actually trifold. First, how to preserve the health of the Scotch whisky industry that is an undeniably important contributor to both Scotland’s and the UK’s economic health? Second, how to harmonize the economic priority of the whisky industry with the aforementioned governmental priority of Scots’ physical health? And third, how to preserve each of these priorities in the face of UK-U.S. trade deal talks leading up to and following Brexit?

On this third point regarding trade deal negotiations is where the classic roadblock emerges:

The U.S. will likely seek to eliminate standards such as whisky-aging requirements that are currently upheld under EU law as the solution to growing the worldwide – but mostly its own? – whisky industry. This scenario would benefit the U.S. but undermine the uniqueness of Scotch whisky, thereby endangering one of Scotland’s most important industries, not to mention what may be considered one of the flagships of Scottish culture.

Conversely, Scotland and the UK will likely seek to preserve traditional whisky standards while simultaneously and forcibly decreasing alcohol consumption, thereby optimizing citizens’ health. This stance seemingly appreciates local culture, Scots’ physical health, and the UK’s economic vitality.

Who wins this timeless argument that centers on legalities such as regulatory standards and geographical indications? Cue the imaginary theme song of Brexit entitled “Uncertainty”.

Next, eating and shopping: LIVESTOCK and DAIRY

As a traveler pondering the uncertain effects any trade deal may have on Scotland’s whisky industry, I invariably begin to think about other iconic Scottish food and drink. Haggis, anyone?

Regardless of how adventurous you may be when it comes to actually ordering and eating a classically Scottish dish such as haggis, undoubtedly locals and tourists alike are prone to come across haggis on a menu. A quick smart-phone search reveals its makeup: lamb and/or beef, oats, onions, and spices. Count me in. But if haggis is still too much, perhaps you experience classic Scottish food in the form of buttery scones or cheese because, as my train and bus co-passengers told me, “Scotland has great dairy.”

Still, if food is not the chosen avenue by which to experience local culture, any visitor to Scotland would be remiss not to notice the presence of Highland Cattle themed souvenirs or woolen scarves and sweaters available for purchase. Either way – adventurous food, dairy laden bites, and souvenirs – all three give some insight to the fact that the agricultural industry is important to Scotland.

So again I wonder, how to preserve this important industry in the face and wake of Brexit? Presumably, if nothing else then at least the dollars of tourism will demand the availability of classically Scottish food and souvenir items. But why should or would tourists demand such items? Because they are part of Scottish culture.

From my visitor’s perspective, the real question or issue should center on how to preserve the livestock and dairy industries that afford haggis and scarves to be so culturally apropos. I may be romantic and nostalgic but from a futuristic standpoint, wouldn’t the sacrifice of culture in present day ultimately lead to an undermining of those cultural authenticities that attract tourist dollars? There’s a crass, money-minded argument for you. Forget the nostalgia. Let’s think practically.

Along that same practical vein: Across Scottish and UK media coverage generally, some of the most common food and drink related headlines include mention of chlorinated chicken and hormone fed beef, each as a result of trade deal negotiations. I cannot help but notice that there seems to be – again – a competition between prioritizing health and prioritizing economy.

Should a trade deal seek to compare such apples to oranges? Consider some of the arguments.

On one hand, there are the familiar beliefs that beef raised with the help of growth hormones and antibiotics as well as chicken washed with chlorine are inherently unsafe for human consumption. In accordance with these beliefs, any abandonment of these standards should not be a compromise that the UK readily accepts in negotiating a trade deal, even after these EU level restrictions no longer apply to the UK post-Brexit. On the other hand, organizations like the National Cattlemen’s Beef Association – which is a trade association and lobbying group for beef producers in the U.S. – label this belief a “precautionary principle and undue fear.”

But what exactly is Scotland’s fear from a livestock industry perspective? One fear already evidenced in the recent case on MUP discussed above is the Scottish government’s fear of poor health of its citizens. Whether a trade deal may have a trickle down effect on Scots’ physical health seems to be non-negotiable, if the citizens’ health really is a priority. But let us presume that domestic health wins the battle over international trade. Put that concern aside. Fears still surround the ag industry, in particular those that readily extend to secondary issues, such as animal welfare.

IF STANDARDS ARE LOWERED FOR THE SAKE OF A UK-U.S. TRADE DEAL, THEN IMPORTED GOODS CAN SUDDENLY ENTER THE GAME IN A NEW WAY AND POTENTIALLY REPLACE LOCAL GOODS IN THE MARKET.

Inherently, with much of Scotland’s livestock industry being located in remote areas of the country, live animals often travel lengthy distances to abattoirs (perhaps more commonly known in the U.S. as slaughterhouses). Though protestors claim differently, the National Farmers Union of Scotland stands by the current high standards of the livestock industry. In my recent ventures through the highlands, I likely never came close to gaining a first hand impression on livestock-animal welfare. But supposedly, poor animal welfare may already exist in Scotland, even with these already high standards. Would this be enough to justify potential imposition of higher standards on agricultural practices, such as transportation of live animals? Fears abound from both sides: the farmers and the protestors.

Specifically on chlorinated chicken, politicians highlight the possible perverse effects of allowing chlorinated chicken into the UK or Scottish market. Fears include the idea that chlorinated washes may lead to poorer quality abattoirs (or slaughterhouses) who could resort to less hygienic conditions given that a chlorine wash could act as a final, fix-it-all cleanup step. There is also the fear that chlorine washes could be used to extend shelf life and make poultry products appear fresher than they really are. The concern here with chlorine washes, for whatever ultimate purpose, seemingly remains centered around human consumption and thus human health. Ironically, that was the motivation behind chlorine washing chicken from the start: to clean the inside of the bird and prevent human consumption of bad-bacteria.

So at the end of the day there is perhaps divided concern for human health, animal welfare, and overall livestock industry viability. Something that all sides can agree on is a fear that any sort of UK-U.S. trade deal may allow importation of livestock that is bred, fed, transported, and/or harvested at lower standards.

The uncertainty is similar to that voiced about Scotch whisky: if standards are lowered for the sake of a trade deal, then imported goods can suddenly enter the game in a new way and potentially replace local goods in the market. Local goods would not only lose their high standards, but also their relevance. Forgive the doomsday rhetoric, but doesn’t that seem like the ultimate cultural sacrifice? Abandoning local practices and industries while adopting globally accepted, but lowered uniform standards?

A tourist’s checklist complete: WHAT NEXT

Think tanks on both sides of the trade deal negotiations table encourage honest conversation, and this includes dispelling emotive and scientifically unsupported rhetoric. Sounds reasonable, and less doomsday-esque. But is it realistic?

Legally, both the U.S. and UK must, of course, comply with their separate and different – though how different is unclear – industry standards. Further, each side must balance their priorities. So again, the importance of first determining these priorities. Scottish government has outwardly prioritized its citizens’ physical health, but is Scotland willing to scale back on that priority for the sake of economic health couched in international trade? It seems only one thing is certain, trade deal negotiations – if nothing else – provoke thought and recognition of the importance of the whisky, livestock, and dairy industries in Scotland.

One can only hope that reflecting on these industries’ importance leads to answering whether food and drink standards should be lowered for the sake of international trade. I personally hope that when I next visit Scotland, I can add to my list of cultural experiences the conversations the general public is having about this topic.