Mark Darlington Osae, the plaintiff in the case against the Food and Drugs Authority [FDA), which sought the annulment of the ban on the promotion of alcoholic beverages by celebrities, has expressed his disappointment in the verdict.

The Supreme court, by a majority decision upheld the Food and Drugs Authority (FDA)'s directive which prevents well-known persons or public figures from endorsing alcoholic drinks on Wednesday, June 19, 2024.

This brings an end to a highly-publicised nineteen-month legal suit filed against the Authority by Mark Darlington Osae, a Ghanaian music executive and publisher based in the United Kingdom.

Delivering an abridged version of the ruling at the apex court on Wednesday, June 19, Chief Justice, Gertrude Torkornoo, said the FDA's directive does not contravene the constitution.

This means that well-known personalities or professionals are perpetually banned from appearing in advertisements that promote alcoholic drinks.

Reacting to the verdict, Mark Darlington Osae told Joy FM, "I am disappointed. We are disappointed in the creative arts space with the ruling of the supreme court which went 5-2 against us. Two of the judges went in our favour and five went in favour of the FDA."

"In terms of the ruling, one of the things that I sought to achieve was to ignite that conversation and also show people in the creative arts that it is possible to stand up sometimes for your right within the space. Because when rules and laws are done and they affect us we need to be interested and we need to test the laws against some of these decisions so that in future when some of these directives and laws are being formulated, they would have to scrutinise them thoroughly to make sure that the right things are done," he said.

He added that other laws that hinder the progress of the creative sector should be contested in court.

"For me, it is a win because now it has opened the doors for people to start looking at some of these decisions that affect us in the creative space and hopefully we should be getting such test cases going to court for interpretation and for clarity. We should not sit on the fence and talk online about these issues," he added.

FDA resolute in upholding ban

Speaking to reporters after the ruling, Director for Legal and Corporate Affairs at the Food and Drugs Authority, Joseph Bennie welcomed the ruling and said the Authority will take steps to prevent well-known personalities and professionals from circumventing the order.

An angry representative of the plaintiff with the Ghana Music Alliance, Nii Ofoli Yartey left the court house saying they'll continue with their advocacy.

How it started

The Food and Drugs Authority (FDA) in 2015 enforced a directive meant to regulate the use of alcohol among Ghanaians. However, aspects of their guidelines prevent celebrities from advertising for alcoholic beverages.

The Authority had explained that due to the influential nature of these showbiz personalities, alcoholic advertisements they are involved in could push minors into alcoholism.

Representing the plaintiff Mark Darlington Osae, was Bobby Banson from the Robert Smith Law Group, while the Food and Drugs Authority was represented by Justine Amenuvor.

On November 11, 2022, Mark Darlington Osae, the manager of Reggie ‘N’ Bollie and Skrewfaze of Black Kulcha Music, filed a writ at the Supreme Court, describing the FDA’s 2015 regulations against alcoholic advertisement by celebrities as discriminatory against the creative arts industry.

The writ indicates that the FDA directive which orders 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 contends 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 makes the directive null, void, and unenforceable.

Creative industry persons including Wendy Shay, Shatta Wale, Brother Sammy, Kuami Eugene, and Camidoh, have all spoken against the law and called on powers that be to repeal it, prior to the court action initiated by Mark Darlington.

According to the stakeholders of the culture and creative industries, endorsements or advertisement of alcoholic beverages is one of the very few income streams available to them at present, therefore, any law that restricts their engagement in such activities robs them of their livelihood.