Human rights are essential to any democracy, but they are not without limits. In Ghana, the 1992 Constitution guarantees rights like equality and freedom from discrimination. At the same time, it allows these rights to be limited where necessary to protect the public interest. The challenge is finding the right balance between individual freedoms and society’s needs.
This article reports on a recent case decided by Ghana’s Supreme Court concerning a ban on celebrity endorsements or advertisements of alcoholic beverages and how the courts balance rights with national or public interest.
Background: Ban on Celebrities From Advertising Alcoholic Beverages
On 1st February 2016, the Food and Drugs Authority (FDA) published guidelines for the advertisement of foods. These guidelines contained a particular one that raised eyebrows. This guideline stated that famous people or professionals are not allowed to appear in alcoholic beverage ads.
The impact of the guideline was loud and clear: if you’d built a name for yourself, you couldn’t lend it to a bottle of beer or a glass of gin. The FDA went ahead to advertise this guideline on the media landscape and started the practice of refusing to approve any advertisement of alcoholic products that features celebrities.
One man by the name Mark Darlington Osae thought this went too far. He took the FDA and the Attorney-General to court, arguing that the guideline wasn’t just strict, it was discriminatory and therefore unconstitutional.
The Legal Challenge: Claims by the Plaintiff
The Plaintiff’s case was simple but bold: the guideline, he argued, violated the right to equality before the law and freedom from discrimination, both guaranteed under Article 17(1) and (2) of the 1992 Constitution.
The core of his argument was that this blanket ban singles out people who have worked hard to build public goodwill, i.e., musicians, actors, footballers, academics, etc., and blocks them from leveraging their reputations to earn a living through advertising. Why should a well-known person be banned from doing alcohol ads when someone else isn’t? Especially when all other advertising rules like responsible messaging still apply?
His case also featured the freedom to work, to participate in economic activity, and to do so without being shut out simply because of your fame or status. He argued that the guideline had no solid evidence or legal justification, just an assumption that public figures should be treated differently.
The FDA’s Response: Protection of Public Health
The FDA and the Attorney-General insisted that the guideline was not just about punishing fame. Rather, it was about limiting influence. Their concern was the powerful effect celebrities and professionals can have, especially on teenagers. They argued that using these figures in alcohol ads could normalize drinking, glamorize it, and make it seem more acceptable especially to young ones.
They also pointed to research and global public health guidance that supports stronger restrictions on alcohol marketing. From their perspective, the ban wasn’t discriminatory. The goal was to protect the public, especially vulnerable groups, from being swayed by advertising that could have long-term consequences.
The Verdict: Differential Treatment Does Not Always Imply Discrimination
In the end, the Supreme Court sided with the FDA and the Attorney-General. It was agreed that not all forms of different treatment are discriminatory. Just because a law affects one group more than others doesn’t make it unconstitutional. What matters is whether the rule is fair, lawful, and applied evenly within that group.
In this case, the Court found that the rule applied to all well-known personalities and professionals equally. No one in that group was given special treatment, and the goal of the restriction, protecting public health, was valid.
It also noted that regulations can classify people into groups if there’s a good reason for it. Here, the influence of public figures was considered a good enough reason, and the restriction was seen as reasonable and proportionate.
Key Takeaways From The Case
This ruling makes one thing clear: public health can trump commercial opportunity, especially when regulators are acting to protect vulnerable groups.
A few key lessons:
- Constitutional rights and freedoms are not fixed or unlimited. They can be limited by law when needed to protect the public, like in matters of public health, as long as the limits are fair and reasonable in a democratic society.
- Being treated differently doesn’t always mean being treated unfairly. What matters is whether the reason for the difference is justified and applied fairly.
- Celebrities and professionals don’t have a guaranteed right to do any kind of advertising. Their influence can be restricted when it poses a risk to public health.
- Regulators are allowed to make rules based on the potential impact of messaging, not just the message itself.
So, if you’re a public figure hoping to land a deal with a whisky or beer brand, you might want to rethink your strategy. Under the current law, you’re off the table, at least when it comes to alcohol ads.
Alhassan Aboagye on behalf of OSD and Partners. [email protected]
