The Scottish government's new majority status is set to reignite the debate over minimum alcohol pricing, for instance, but any attempt to impose the mooted 45p per unit rule on beers, wines and spirits could be both contrary to EU law and potentially outside the government's own legal remit.
So says Charles Livingstone, associate in the public law and regulatory division at Edinburgh law firm Brodies. He believes that minimum pricing has its own supporters within the drinks industry, but that there is "sufficient strongly held opposition to make a legal challenge extremely likely".
The so-called 'Tesco Tax' or Supermarket Levy, which would see larger high-street and out-of-town stores hit with a 35% increase in their business rates, is also likely to make a comeback in the current parliament, but Livingstone believes any such move would raise complex legal issues around providing state aid for certain sections of the business community and not others.
"We believe that by appearing to significantly favour smaller retailers over larger ones, the Scottish government could fall foul of the existing law and would, of course, trigger vociferous opposition from the companies affected," he says.
The SNP manifesto didn't mention any new specific regulations on tobacco, but Imperial Tobacco's appeal last month over proposed restrictions to the public display of cigarettes could land the beleaguered industry with yet another fight with politicians on its hands.
"I wouldn't be surprised if plain packaging proposals appear at some point," says Livingstone, "but until the current case over public display has been settled, the contemplation of yet further regulation is still very much up in the air." Retailers are also at risk from the Scottish government's "obesity strategy", published last term, which Livingstone thinks may be expanded upon in the new parliament.
A number of proposals, including supermarket promotions, labelling and product placement, would affect retailers and could, he says, raise legal issues under both EU law and the Scotland Act.
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