Supreme Court Justice Orders FDA Guideline Banning Celebrities from Alcohol Ads to Be Struck Down
Justice Barbara Ackah-Yensu of the Supreme Court has ordered the Food and Drugs Authority (FDA) guideline banning celebrities from advertising alcoholic beverages to be struck down, labeling it as discriminatory.
Justice Ackah-Yensu, in her dissenting opinion in a 75-page judgment delivered on June 19, 2024, and released on July 15, 2024, argued that the directive, “No well-known personality or professional shall be used in alcoholic beverage advertising,” is unconstitutional. This dissent was concurred by Justice Prof. Henrietta Mensa-Bonsu.
Ackah-Yensu concluded that the plaintiff made a compelling case that Guideline 3.2.10, which seeks to prevent “well-known personalities and professionals” from engaging in alcoholic beverage advertisements, is discriminatory and unconstitutional. She declared the guideline, published by the FDA on February 1, 2016, as inconsistent with Articles 17(1) and (2) of the 1992 Constitution. Consequently, she ordered the striking down of Guideline 3.2.10 and perpetually restrained the FDA from enforcing it.
She emphasized that these advertisements are a source of economic livelihood for some individuals and that it is unconstitutional to cut off their economic means merely because they can arouse societal interest. She stated that the FDA must design a mechanism consistent with the Constitution to achieve its goals without being discriminatory. Ackah-Yensu also acknowledged existing restrictions provided by the Liquor License Act and other guidelines to ensure responsible alcohol use, suggesting that Parliament could legislate if it deemed necessary to exclude any specific group from advertising alcoholic beverages.
In contrast, the majority decision of the Supreme Court, delivered on June 19, 2024, upheld the FDA’s directive banning celebrities from endorsing alcoholic drinks. The seven-member panel, presided over by Chief Justice Gertrude Sackey Torkornoo, held that the FDA guideline was not unreasonably excessive and did not contravene the 1992 Constitution. The majority found that the FDA had the authority under the Public Health Act, 2012 (Act 851), to issue guidelines to regulate the production and consumption of food and drugs, including alcoholic beverages, to protect public health.
The majority decision concluded that Guideline 3.2.10 was issued within the general powers conferred on the FDA by the Public Health Act, 2012, Act 851, and that it was reasonable and in the public interest of health in Ghana. Consequently, the guideline was not discriminatory and did not contravene Articles 17(1) and (2) of the 1992 Constitution. The plaintiff’s action was therefore dismissed by the majority judges, including Chief Justice Gertrude Sackey Torkornoo, Justice Paul Baffoe-Bonnie, Justice Mariama Owusu, and Justice George Kingsley Koomson.
In 2015, the FDA issued a directive banning celebrities from endorsing alcoholic beverages to protect minors and ensure public health safety. Unhappy with the directive, Mark Darlington Osae, an artiste manager, challenged the FDA’s directive, arguing that it violated equality and was discriminatory against the creative industry.
