Supreme Court to deliver judgment on FDA ban on celebrity alcoholic advert today

The Supreme Court will today, June 19, 2024, deliver its judgment in the case where Mark Darlington Osae has filed a suit against directives banning celebrities from alcoholic advertisements.

The apex court's panel of seven had twice, including on May 8, 2024, deferred its judgment on the matter.

The Food and Drugs Authority (FDA) issued a directive banning celebrities from advertising alcoholic beverages. The FDA's directive, which barred the use of celebrities in promoting alcoholic beverages, aimed to protect minors from being influenced by celebrities into alcoholism.

Mr. Mark Osae, the manager of Reggie 'N' Bollie and Skrewfaze, dissatisfied with the directive, filed a writ at the Supreme Court on November 11, 2022, arguing that the FDA's 2015 regulations discriminate against the creative arts industry.

The plaintiff, who is also a music publisher at Perfect Note Publishing, wants the Supreme Court to strike down that regulation.

Mr. Osae, the Chairman and Co-Founder of the Ghana Music Alliance, stated that 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, rendering the directive null, void, and unenforceable.

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

The FDA's directive discourages the use of celebrities in the promotion of alcoholic beverages through any medium. This policy is part of the government of Ghana's efforts to protect children and young people from alcohol marketing.

However, the plaintiff argues that this child protection measure would deprive the entertainment industry of potential income streams.

In the writ issued on November 11, 2022, Osae contends that aspects of the FDA's 2015 regulations amount to discrimination based on economic status, occupation, among others.

The artist, manager, and music publisher is thus asking the Supreme Court to declare unconstitutional the guidelines stipulating that "No well-known personality or professional shall be used in alcoholic beverage advertising."

Reliefs Sought:

(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.