The Scotch Whisky Regulations 2009

Regulation 34(2)

SCHEDULE 4 FACTORS TO BE TAKEN INTO ACCOUNT IN DETERMINING THE AMOUNT OF A PENALTY

PART 1 Aggravating factors

1.  Seriousness of the non-compliance.

2.  Financial harm to consumers.

3.  Financial harm to competitors.

4.  Duration of non-compliance.

5.  Evidence of intention behind the non-compliance.

6.  History of non-compliance of the person (“ P”) to whom the penalty notice is to be given.

7.  Financial gain made by P as a result of the non-compliance.

8.  Financial resources of P.

9.  Size of P’s business.

10.  Availability of the non-compliant product, including the number of retail shops in which it has been marketed.

11.  Where P is a retailer with a number of retail shops, the number of retail shops operated by them (whether or not there is evidence that the non-compliant product has been, or may have been, marketed in all of those shops).

12.  The conduct of P after the non-compliance is drawn to their attention by an enforcement authority.

13.  Previous action taken by the enforcement authority to help P comply with the Regulations.

PART 2 Mitigating factors

1.  Action taken to eliminate or reduce the risk of harm resulting from the non-compliance.

2.  Action taken by P to repair the harm done by the non-compliance.

3.  Any co-operation given to the enforcement authority by P in responding to the non-compliance.

4.  Whether P reported the non-compliance to the enforcement authority.

5.  Financial resources of P.

6.  Size of P’s business.

7.  Availability of the non-compliant product, including the number of retail shops in which it has been marketed.

8.  The conduct of P after the non-compliance is drawn to their attention by an enforcement authority.

9.  Where the non-compliance was committed by an employee of P, the extent to which the employee was acting outside of their authority.