Advertising of alcoholic beverage: Supreme Court endorses FDA ban on celebrities

The Food and Drugs Authority (FDA) guideline which prohibits well-known personalities from being used in alcoholic beverage advertising does not contradict the 1992 Constitution, the Supreme Court has ruled in a 5-2 majority decision. 

Dismissing the case filed by an artiste manager, Mark Darlington Osae, yesterday, the court which had Justice Gertrude Sackey Torkornoo as the President of the panel, said the guideline was not unreasonable as argued by the plaintiff.  

“This suit fails in its entirety and is hereby dismissed,” Justice Torkonoo said, adding that the reasoned decision of the court would be ready by Friday. 

Guideline

On February 1, 2016, the FDA published Guideline 3.2.10 of Guidelines for the Advertisement of Foods. The guideline stated that, “No well-known personality or professional shall be used in alcoholic beverage advertising”.

The FDA contended that the guideline was necessary to stop minors from taking in alcohol due to the influence of celebrities. However, Mr Osae, who is also the Chairman and Co-Founder of Ghana Music Alliance, dragged the FDA and the Attorney-General to the apex court for redress.

He argued that the guideline of the FDA was unconstitutional as it violated the right against discrimination as guaranteed by Article 17 of the 1992 Constitution.

Article 17(1) of the Constitution stipulates that all persons shall be equal before the law, while Article 17(2) states that, “a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status”.

Reliefs

As part of his reliefs, Mr Osae sought for 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 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 was thus unconstitutional.

He also asked the apex court for 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.”

He was also seeking “an order striking down Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by FDA  on February 1, 2016 as being inconsistent with and in contravention of the letter and spirit of the 1992 Constitution and as such a nullity.

Writer’s E-mail: justice.agbenorsi@graphic.com.gh