NSW Liquor Act – Proposed Regulation Change

You can’t have missed the Hard Solo issue in 2023 – and now its having real repercussions with proposed regulation changes in NSW.

The NSW Government are proposing to adopt a regulation change in NSW that aims to ‘prohibit a class of liquor products that leverages well-known soft drink branding’.   In the proposed regulation, the NSW Government borrows heavily from the language in the Hard Solo decision by Alcohol Beverage Advertising Code. 

What this means for you?

If the proposed regulatory change is adopted, it could have significant implications.  For example, if a product is deemed to be ‘undesirable’ it would no longer be able to be sold in NSW.  

Could any of your products meet the new definition?  Its important we hear from you now.

The Proposed Changes

Liquor and Gaming New South Wales (L&GNSW) is considering formal regulatory action under the Liquor Act 2007 (NSW) (the Act) to prohibit a class of liquor products in NSW that leverages well-known soft drink branding.
It is proposed that clauses c), d) and e) (in bold below) be added to section 100 of the Liquor Regulation Act 2018. 

NSW Legislation

 Under section 100 of the Act, action can be taken to either declare a specified liquor product or class of liquor products to be undesirable in the Liquor Regulation 2018 (NSW). In either circumstance, the decision maker must be satisfied that: 

(a) the name of the liquor product, or its design or packaging, is indecent or offensive, or 
(b) the name of the liquor product, or its design or packaging, encourages irresponsible, rapid or excessive consumption of the product, or 
(c) the name of the liquor product, or its design or packaging, is likely to be attractive to minors, or 
(d) the liquor product is likely, for any reason, to be confused with soft drinks or confectionery, or 
(e) the liquor product is, for any other reason, likely to have a special appeal to minors, or 
(f) it is otherwise in the public interest to declare the liquor product to be an undesirable liquor product. 

Any liquor product or class of liquor products determined to be an undesirable liquor product must not be sold or supplied by a licensee in NSW.

The Background and Reasons for Regulatory Action 

During the course of L&GNSW’s consideration of the Hard Solo liquor product, submissions were sought from several drug and alcohol research bodies. A common thread among them was the high popularity of soft drinks among young people and the particular vulnerability of minors to alcohol related injuries and diseases. 

L&GNSW has formed the view that liquor products which leverage established or iconic soft drink brands inherently hold appeal to minors and believes this risk warrants consideration of regulatory action under section 100 of the Act. The speed with which Hard Solo gained popularity within the market and among young people highlights the risks associated with dealing with this type of product in a reactive manner and the need for more definitive guidance to industry around what is or is not acceptable. 
In light of the above, and noting the existence of further soft drink brand extension alcoholic products in other markets, L&GNSW is minded to recommend to its Minister that a regulation be made declaring a class of products as undesirable, along the following or similar lines: 

Any liquor product the lead branding elements of which are that of an established or iconic soft drink brand (or words to this effect). 

It is acknowledged that a spectrum of risk exists in relation to liquor products that may be captured by the above wording. For example, a ‘hard’ version of an iconic soft drink that tastes similar to its ‘soft’ counterpart may have a higher risk profile to a liquor product that leverages soft drink branding but leads with alcohol branding and does not have a similar taste profile to the leveraged soft drink. As such, L&GNSW is open to exploring alternative wording options.

The original letter from L&GNSW is available below.

View NSW Government Letter

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