By Jed Meers, York Law School, University of York (@jed_meers)

As England enters a new set of tiered restrictions, “wet pubs” – those establishments that do not serve food, accounting for over half of the sector – face a problem. The new Tier Two restrictions prohibit the sale of alcohol for consumption on a licensed premises unless it is served as part of a “table meal”.[1] The regulations detail a two-pronged definition. First, the food itself. This must be a meal that “might be expected to be served as breakfast, the main midday or main evening meal, or as a main course at such a meal”. Second, the table it is eaten at. Here, the regulations mirror language adopted in s.159 Licensing Act 2003 to state that:

…a “table meal”  is a meal eaten by a person seated at a table, or at a counter or other structure which serves the purposes of a table and is not used for the service of refreshments for consumption by persons not seated at a table or structure serving the purposes of a table.[2]

Other than broad references to the requirement for a “substantial meal”, guidance has been few-and-far between. In an illustration of the considerable grey area at play, when questioned over whether a Cornish pasty would count as a meal under the old Tier 3 regulations, Housing Secretary Robert Jenrick said it would, but only if it “came on a plate with chips or a side salad”. Earlier this week, Environment Secretary George Eustice suggested that a Scotch Egg (also – importantly – via table service) might well suffice.

This requirement raises all sorts of vexed issues – such as how long you stay after you have finished eating, how many alcoholic drinks are proportionate to a meal, where the dividing line sits between a substantial and non-substantial meal, and so on – but this blog seeks to ask one narrower question: are crisps capable of being a table meal? In doing so, it seeks to illustrate that this process of identifying “table meals” is not just about the food itself or the table it is eaten at, but – in common with other areas of licensing decision-making – works alongside broader considerations about the “nature” of the establishment and its clientele. As argued by Yeomans in his seminal work on alcohol licensing and moral regulation, even the deregulatory approaches of the current Licensing Act 2003 are imbued with many of the same “hangovers” from Victorian temperance attitudes. I start with a brief assessment of food-led licensing restraint, before turning to an example licensing hearing from 2017.

“Raines law sandwiches” and substantial food

Tying alcohol consumption to a sit-down meal is a long-standing technique from the temperance playbook. Perhaps the best-known example is New York’s so-called “Raines Law” ­– legislation at the turn of the 20^th century that required establishments to serve a table meal with any alcoholic drinks on a Sunday. It soon become synonymous with the “Raines law sandwich”; the cheapest possible composition of “waterproof ham” and “tough bread” that could charitably be described as a meal. According to hearings in front of the prohibition-era American Congress, establishments placed these on the table at the start of service to comply with the legislation and they “stood on the table, untouched, until Sunday was over”. These sandwiches were so hardy, Carson even recounts a story of them being weaponised in a bar room brawl, where “a man snatched up a venerable Raines law sandwich and brained his adversary with it in one blow”.[3]

Although not quite as acute as Raines Law, seated meals are a longstanding dividing line between types of establishments within English licensing law. In a sample of 319 licensing polices at English Local Authorities analysed by the author, 95 make direct reference to “table meals”, “substantial meals”, or “plated meals”, 14 to “substantial food”, and a further 13 to alcohol being “ancillary to food” or a meal – most of these in the context of assessing whether an establishment is alcohol-led or can instead be considered a restaurant.

Interpreting these policies and imposing corresponding licensing conditions is part of the bread-and-butter (pun intended) of Local Authority licensing committees. A trawl through Licensing Committee hearings offers evidence of where the key points of dispute arise and where they consider this dividing line between a “table meal” and a mere snack to sit. The exchange below between a councillor and applicant at a recent licensing hearing in-front of the London Borough of Kensington & Chelsea’s licensing committee demonstrates the issue well. As the councillor says, “food has various meanings”, and a table meal is a “knife and fork type of meal” not a “bag of crisps”.

Many of these arguments are imbued with more than just the size and content of the meal being eaten. These are proxies for broader, softer issues about the type of the premises and its clientele. This argument is put starkly by counsel for an applicant in front of Thanet District Council:

…tying alcohol to food is no particular guarantee in of itself of how people behave…it’s not about forcing people to eat while they’re drinking, it’s a question of management, it’s a question of the class and calibre of the premises.

It is these questions of “class and calibre” that form part of the interpretation and enforcement of licensing conditions. Haydock draws on Bourdieu’s characterization of “classed taste” when analysing the “quirky coffee bars” and “sort of bistro places” preferred by councillors sitting on licensing committees, as opposed to venues where people “stand and pour lager down their throats”.[1] The impression of a venue, its operation and its likely clientele are all part-and-parcel of the narrower assessment of what form a table meal and/or substantial food must take.

So when are crisps a table meal?

Crisps are much derided in licensing hearings and policies, often characterised as mere snacks. Brighton & Hove’s policy that “a bowl of crisps, nuts, or olives does not constitute substantial food”, is a sentiment echoed routinely across licensing hearings.

However, minutes from a licensing hearing at Westminster City Council in 2017 demonstrate that ­– when conditions are right and these broader factors of “class and calibre” are accounted for – mere crisps are capable of stepping into the realm of a table meal. Here, the applicant applied for a license to serve alcohol in a “cumulative impact zone” – an area subject to greater restrictions and a rebuttable presumption against the grant of an alcohol license. They argued that they were effectively operating as a restaurant, with any consumption of alcohol only being ancillary to a table meal of crisps.

However, these crisps were billed as far from the standard pub affair. These were “high-end crisps”, served in “substantial portions accompanied with various elaborate dips.” The applicant sought to echo hallmarks of a restaurant, noting that “whilst there were no tablecloths” it is still a “high-end well-conceived approach to a niche product”, focused on “elevating a British food classic to a high-end level.”

The licensing committee were convinced and effusive, commending their substantial work to date to “create a ‘non-Walkers’ crisp offer and the desire to celebrate the great British potato at its peak and most hip.” The crisps were sufficient to meet the condition of “substantial food” in order to attain an alcohol license akin to a restaurant. To ensure that the venue did not backslide into a more alcohol-led format, the committee imposed an additional condition that: “the sale of alcohol at the premises, at all times, shall be ancillary to the premises remaining a specialist crisps shop.”

So, the answer to the question when are crisps a table meal? When they are at their “peak and most hip”: a high-end “non-Walkers crisp offer” with “elaborate dips” may well suffice. The question of when crisps become a table meal illustrate that – as with much of licensing law – it is not just about a mechanistic interpretation of what a “table meal” or strict meaning of a particular condition is, but instead is part of a broader, often classed and gendered, proxy for the nature of the establishment and its clientele.

[1] William Haydock, ‘The ‘civilising’ effect of a ‘balanced’ night-time economy for ‘better people’: class and the cosmopolitan limit in the consumption and regulation of alcohol in Bournemouth’ (2014) 6(2) Journal of Policy Research in Tourism, Leisure and Events, 172-185, 180.

[1]  Reg.14(2) The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020/1374.

[2] Reg.14(4) The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020/1374.

[3] Gerald Carson, The Social History of Bourbon (University Press of Kentucky, 2010) 203.