Celebrity endorsements have become a common marketing strategy. From the late 90s into the 2000s Parlays biscuit was a fan favorite. It was not necessarily the best biscuit on the market but Abedi Pele told us, on TV, that he loved Parlays biscuit and so we loved Parlays, too.

Abedi’s star power drew us to a particular biscuit, but could it have singularly ensured that kids like us, barely out of primary school, would have been drinking alcohol? Not unless we could afford it and found barkeepers who would actually sell it to us and lacked adult supervision to get away with it.

Nonetheless, in the just-ended Supreme Court term, the Court upheld in Osae v Food and Drugs Authority (FDA), a Guideline on the Advertisement of Food that would prevent Abedi Pele then, or any “well-known” person now, from advertising alcoholic drinks. The FDA’s regulation is based on a causal link between celebrity endorsement and alcohol abuse among minors and the general public.

The Plaintiff’s challenge to the Guidelines was weak in significant respects—celebrities are not a protected group under Article 17 of the Constitution. Yet, the judgment of the Court in Osae is troubling in its own right in that it failed to apply the Court’s time-tested approach to challenges of administrative regulation that could put constitutional rights in jeopardy.

Undoubtedly, the government has a legitimate interest in protecting persons who lack the capacity or information to make decisions for themselves in the free market. Determining the scope of that legitimate interest and how to secure it against individual rights is the province of the court.

For decades, though, the Supreme Court has been sensitive to regulatory bodies seeking simple solutions that curtail constitutional rights. As such, it has been held that when a regulation by an Authority such as the FDA is challenged as potentially unconstitutional, it is the Authority that must show how it passes constitutional muster. In Osae v FDA however, the current Court turned this bedrock principle on its head by taking the FDA’s claims on faith and holding the Plaintiff, rather, to a higher burden of proof.

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The FDA did not cite a single study conducted in Ghana to establish the link between celebrity endorsement and the abuse of alcohol among underage youth. None. But, in the telling of the majority opinion, because the FDA has statutory authority to regulate the sale of food and drugs to the public, we should all listen to what the FDA says.

The Court in this approach abdicated its crucial responsibility of scrutinizing the Guideline to establish its necessity to secure a legitimate interest and its proportionality to the limits it puts on individual rights. That is to say, whether there is no other way of protecting underage youth from accessing and abusing alcohol other than preventing other people from using their skills, image and intellectual property to earn a living.

The Court did not require the FDA to show why banning adverts at certain times of the day in electronic media, punishing vendors who sell alcohol to children and requiring the same celebrities who endorse alcoholic brands to warn underage persons of its dangers were not enough. Neither was the FDA nor the Court interested in a distinction between well-known persons who are influential among young people and those who are not.

The dissenting opinion understood why the FDA’s regulation is at least misguided. Not only does its failure to define who a well-known person is create uncertainty, it is also impractical. For example, is an unknown person who becomes “well known” because of an advert barred from advertising in the future?

Again, if the goal is to curtail the influence of celebrities on minors, what about media that are not accessible to minors because of subscription and age requirements? Would this regulation matter given that Ghanaians have unlimited access to content from countries without similar restrictions?

Crucially though, by adopting the moral vocabulary of guilt and innocence to describe advertisement and sale of alcohol, the majority opinion showed its hand. That frame suggests, perhaps, that the Court was happily unwilling to get in the way of the FDA stopping what it probably agrees is morally objectionable.

Yet, going by the FDA’s reasoning, any Regulator could ban anything on a plausible hypothesis. Some speech on social media could threaten national security; and ban social media. Pop music has some bad words that might influence children; ban pop music. And so on.

In reaching its conclusion, the majority opinion notably reiterated the notion that “rights are not absolute”. But in seeking to limit rights, the Court’s extant case law required that the FDA showed a legitimate public interest that necessarily required the limitation of individual rights.

The majority’s analysis fell below that level of scrutiny resulting in upholding a broad rule that is unclear about what it is preventing and why. But ultimately, by putting the limits on rights on the same pedestal as rights, the majority opinion missed the forest for a tree because, in the constitutional framework, it is the rights that are fundamental, not the limitations.