FDA ban on celebrity alcoholic advert: Supreme Court defers judgement to April 24

The Supreme Court has deferred its judgment in the case in which Mark Darlington Osae has filed a suit against directives that banned celebrities in alcoholic advertisements to April 24, 2024.

The apex Court panel of seven had fixed Wednesday, April 10, for its judgment.

However, uncertainties surrounding the date for the celebration of Eid-ul-Fitr following a month of Ramadan fast played a part in the adjournment.

The Food and Drugs Authority (FDA) had issued a directive that placed a ban on celebrities from advertising alcoholic beverages.

The FDA’s directives, which barred the use of celebrities in plugging alcoholic beverages, were aimed at protecting minors from being influenced by celebrities into alcoholism.

Mark Osae, the manager of Reggie ‘N’ Bollie and Skrewfaze, dissatisfied with the directive, issued a writ at the Supreme Court on November 11, 2022, saying the FDA’s 2015 regulations are discriminatory against the creative arts industry.

The plaintiff (Mark Darlington Osae), also a music publisher at Perfect Note Publishing, wants the Supreme Court to take down that regulation.

Mark Osae, who is the Chairman and Co-Founder of Ghana Music Alliance, said the FDA directive which ordered that, “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, occupation, among others, and consequently null, void, and unenforceable.

Before the action was initiated at the Supreme Court, some of the stakeholders in the creative industry including Wendy Shay, Shatta Wale, Brother Sammy, Kuami Eugene, and Camidoh, had all spoken against the law and had called on powers that be to repeal it.

The FDA’s directives discourage the use of celebrities in the promotion of alcoholic beverages via any medium.

This policy forms part of the efforts by the government of Ghana to protect children and young people from alcohol marketing.

But the plaintiff ignores this reality and argues that the child protection measure would rob the entertainment industry of potential streams of income.

In the writ issued on November 11, the plaintiff, Mark Darlington Osae, said those areas of the FDA’s 2015 regulations are tantamount to discrimination on grounds of economic status and occupation among others.

The artist, manager, and music publisher are thus asking the Supreme Court to render as unconstitutional the guidelines which stipulate that, “No well-known personality or professional shall be used in alcoholic beverage advertising.” Mr. Darlington Osae is the Chairman and Co-Founder of Ghana Music Alliance.

Reliefs

(a). A declaration that on a true and proper interpretation of Article 17(1) and (2) which guarantee equality before the law and prohibits 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 1st February 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 Article 17(1) and (2), Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant on 1st February 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 prohibits discrimination against persons on grounds of social or economic status, occupation amongst 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 Ist Defendant on Ist February 2016 as being inconsistent with and in contravention of the letter and spirit of the 1992 Constitution and as such nullify.

(d). An order of perpetual injunction restraining the Defendants, their agents or 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 1st February 2016 from doing anything to prevent any well-known personality or professional from advertising alcoholic products.