Supreme Court dismisses anti-FDA suit on celebrity alcohol adverts

The Supreme Court has thrown out a suit seeking to declare as “unconstitutional” the guidelines by the Food and Drugs Authority (FDA) that prohibit celebrities from advertising alcoholic beverages in Ghana.

In a ruling today, June 19, 2024, a seven-member panel of the apex court, led by Justice Gertrude Torkonoo, held that the FDA guideline is not unreasonable and does not contradict Article 17 (1) of the 1992 Constitution.

“This suit fails in its entirety and is dismissed,” Justice Torkonoo stated.

It will be recalled that in 2016, the FDA instituted guidelines for the advertisement of foods and beverages, where the authority noted that influencers or celebrities should not be used in alcoholic beverage advertisements.

However, the plaintiff in the case, Mark Darlington Osae, who is the manager for Musicians Reggie ‘N’ Bollie, and Skrewfaze, believes that the directive is “discriminatory” and “unconstitutional”.

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He filed the suit at the apex court, praying the court to injunct the Food and Drugs Authority by interpreting articles 17(1) and 17(2) of the constitution to mean that the directive was discriminatory.

Mr. Osae’s lawyer, Bobby Banson, argued that the FDA’s 2015 regulation banning celebrities from advertising alcohol is discriminatory against the creative arts industry.

The writ asserted that the FDA directive, which states “no well-known personality or professional shall be used in alcoholic beverage advertising, is inconsistent with and in contravention of articles 17(1) and 17 (2) of the 1992 Constitution”.

He contended that Articles 17(1) and 17 (2) of the 1992 Constitution guarantee equality before the law and prohibit discrimination against persons on grounds of social or economic status, and occupation, among others, and consequently make the directive null, void, and unenforceable.

The writ also sought the following reliefs;

(a) A declaration that on a true and proper interpretation of Articles 17(1) and 17(2), which guarantee equality before the law and prohibit discrimination against persons on grounds of social or economic status, occupation, among others, Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant on February 1, 2016, which provides that “No well-known personality or professional shall be used in alcoholic beverage advertising,” is discriminatory, inconsistent with, and in contravention of Articles 17(1) and 17(2) of the 1992 Constitution, and thus unconstitutional.

(b) A declaration that on a true and proper interpretation of Articles 17(1) and 17(2), Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant on February 1, 2016, which prohibits well-known personalities and professionals from advertising alcoholic products, is inconsistent with and in contravention of Articles 17(1) and 17(2) of the 1992 Constitution, which guarantee equality before the law and prohibit discrimination against persons on grounds of social or economic status, occupation, among others, and consequently null, void, and unenforceable.

(c) An order striking down Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant on February 1, 2016, as being inconsistent with and in contravention of the letter and spirit of the 1992 Constitution, and as such nullified.

(d) An order of perpetual injunction restraining the Defendants, their agents, servants, or assigns under the pretext of acting under Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant on February 1, 2016, from doing anything to prevent any well-known personality or professional from advertising alcoholic products.

Since the issue popped up, well-known celebrities like Sarkodie, Wendy Shay, Shatta Wale, Brother Sammy, Kuami Eugene, and Camidoh also opposed the FDA’s directive, citing that endorsing alcoholic beverages is a crucial income stream for the creative art industry and that the ban adversely affects their livelihoods.

Also, Vision for Alternative Development, Ghana (VALD Ghana) and other civil society organisations earlier backed the Food and Drugs Authority’s position on banning alcohol advertisements by celebrities.

The CSOs say the decision by some celebrities to engage in alcohol advertisements for monetary benefits or personal gains without recognising its adverse effect on children and young people is quite appalling.

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