GHANA Trends and Developments Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
The Food and Drugs Authority’s Guideline Restricting Well-Known Individuals from Advertising Alcoholic Beverages in Ghana and the Supreme Court’s Decision in the Case of Mark Darlington Osae V Food and Drugs Authority & Anor Introduction Advertising in Ghana is regulated by various entities, whose powers are limited to the products and ser - vices that fall within the sector of the economy within which the entity operates. The production, sale and advertising of foods, drugs, cosmetics and house - hold chemicals are regulated by the Food and Drugs Authority (FDA) of Ghana. FDA’s power to make regulations The Public Health Act, 2012 (Act 851) empowers the FDA to enforce the provisions of Act 851 and to issue guidelines and directives that regulate the production, sale, marketing, packaging and advertising of foods, medicines and other products that fall within the pur - view of the FDA. This role is taken very seriously by the FDA, which over the years has conducted spot visits to media houses, factories, warehouses and sales outlets across Ghana to ensure that its regula - tions and guidelines and the provisions of Act 851 are strictly adhered to. This is done with the intention of keeping the Ghanaian populace safe while consuming products that fall under its purview. In relation to advertising, the provisions of Act 851 lay down processes and requirements that should be complied with. In line with its mandate under Act 851, the FDA introduced its Guidelines for the Adver - tisement of Foods (Guidelines) on 1 February 2016, which specifically stated in paragraph 3.2.10 that “no well-known personality or professional shall be used in alcoholic beverage advertising”. In its glossary in paragraph 2, the Guidelines define a “well-known personality”to include any person who arouses sufficient interest in society. This may include historical, political, religious, academic or cultural fig - ures, as well as celebrities and sports figures. As a means of enforcing its Guidelines and ensur - ing compliance with its directives, the FDA also pre- approves all forms of advertisement for foods, drugs,
cosmetics and household chemicals in relation to products that fall under its purview. This ensures that any advertisements attempting to feature celebrities or well-known personalities are not approved by the FDA to be aired either via traditional media or across social media platforms. Reaction to the ban As expected, the introduction of this ban attracted a significant amount of pushback from celebrities and influencers in Ghana who earned some of their rev - enue from endorsements, especially from alcoholic products. Several persons took to social media to air their dissatisfaction with the ban, which they alleged was a restriction of their fundamental rights and lim - ited their economic rights as guaranteed by the 1992 Constitution. The public had mixed reactions to the ban. Some people supported it, but celebrities and other affected people spoke out against the ban, including Wendy Shay, Charles Nii Armah Mensah (popularly knowns as “Shatta Wale”), Eugene Kwame Marfo (known as “Kwami Eugene”), Raphael Camidoh Kofi Attachie (known as “Camidoh”) and Mark Darlington Osae. They raised serious concerns while calling for the repeal/reversal of the ban. The public debate and agi - tation continue, and several well-known personalities have made their dissatisfaction known on television, radio and social media while continually calling for a reversal of the ban. Mark Darlington Osae v Food and Drugs Authority & Anor On 11 November 2022, a suit was filed against the FDA and the Attorney General at the Supreme Court by Mark Darlington Osae, who sought declaratory relief, stating that the FDA’s Guidelines were discrimi - natory and offend the Constitution, and that said dis - crimination was on social or economic grounds and thus the Guidelines were unenforceable. The plaintiff also sought an order striking down paragraph 3.2.10 of the FDA Guidelines for being inconsistent and con - travening the 1992 Constitution, as well as an injunc - tion restraining the defendants from acting under the disputed Guidelines and preventing any well-known personality from advertising alcoholic beverages. The plaintiff filed his Statement of Case in support, and the
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