Legal issues involved in FDA ban on celebrities featuring in alcohol adverts

For sometime now, a running battle has been on going between the Food and Drugs Authority (FDA) on the one hand, and some personalities in the entertainment industry- especially Wendy Shay. The source of the running battle lies squarely with the Food and Drugs Authority’s “Guidelines for the Advertisement of foods (1st February 2016).”

First, lets start with the status of the “Guidelines for the Advertisement of Foods.” Section 148 of the Public Health Act, 2012 (Act 851) gives the FDA the power to make guidelines. So, the guidelines are not mere guides but have the force of the law.

The guidelines set out the framework for the advertisement of foods and alcoholic beverages (including those imported or locally manufactured). The main aim of the guidelines is to ensure that the advertisement of alcoholic drinks is conducted in a responsible manner. To be more specific, the guidelines seeks to ensure that:(a) alcoholic beverages are advertised in a way that does not mislead or deceive the consumer[1]; and (b) instil responsible use of alcoholic beverages[2].

Before going ahead, it is important to emphasize that, the manufacture, sale, and consumption of alcohol by adults is not illegal in Ghana. The Liquor Licensing Act,1970 (Act 331) sets out the framework for the manufacturing and dealing in alcohol. Therefore, the sale and consumption of alcohol is a regulated activity and therefore not an illegality.

Back to the FDA guidelines. Guideline 3.2.10 of the guidelines provides that “No well known personality or professional shall be used in alcoholic beverage advertising.” Similarly, guideline 3.2.12 provides that “Where an Alcoholic Beverage Company sponsors a program, a well- known personality, sporting activity, festival and any other function, an advertisement or publicity event that promotes the product must be submitted to the Authority for approval”. The guidelines define a well-known personality as including

“any person who arouses sufficient interest in society. This may include historical, political, religious, academic, cultural figures as well as celebrities and sports figures[3].”

Let us break down this. First, the guidelines bar anybody “who arouses sufficient interest in society” from appearing in an alcoholic advertisement. The guidelines go on to give examples such as historical figures, political figures, religious personalities, academics, cultural figures, celebrities, and sports figures. Because of the very wide terms of the definition given to a “well-known personality”, we may stretch it to include social media influencers of whatever background, opinion leaders and so on.

The justification for such a wide clause is that the law is concerned about the use of influence in promoting alcohol and its impact on public health. In other words, the lawmakers are very much aware that a good number of people are influenced by these personalities; and are therefore most likely to jump on the bandwagon and support whatever alcoholic beverages they endorse.

However, a number of issues come up from the definition. Aside from the obvious fact that the guidelines are very broad and wide, the guidelines do not define what a “society” is. Does “society” mean the country as a whole. Does “society” means a community? It seems that the FDA is likely to deploy “society” in the wider sense to include communities and the country.

Apart from the definitional difficulties raised above, the prohibition or ban imposed by the FDA on some persons in society raises serious human right and constitutional concerns. It is a well known principle that, freedoms or rights are generally not absolute however, any prohibition or interference with one’s enjoyment of a right guaranteed under the 1992 constitution, must be measured bearing in mind the effect of the interference or prohibition on the right of the individual and not just the object or purpose of the prohibition or interference.

In effect, whether a prohibition/interference with a right as has been done by FDA will be permissible is determined by the effect of the prohibition or interference on the right and not just the object of the interference. So a policy may have good objectives but have the effect of depriving a person of a right.

Having outlined the parameters within which an interference with a right is measured, we shall now proceed to address the potential effect(s) of the FDA guidelines on the guaranteed human rights of the persons affected by the ban.

Freedom of Expression

Article 21 of the Constitution provides that “all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.” This provision means that everyone, including these “well-known personalities” have the right to express themselves. The right to expression is defined to include the right to freely either by conduct or statement showcase what one believes in so long as that belief has not been proscribed by law. The right to expression allows a person to be able to publicly showcase their belief or viewpoint without fear of intimidation or sanction. In our view, the right to expression includes the right to endorse, promote, market and feature in the advertisement/marketing of any alcoholic beverage which a person believes in either for economic gain or otherwise.

It is the right to expression which allows us to showcase the characteristics of what we believe in, such as hanging images of Christ in our homes, offices among others. The importance of this right cannot be overemphasized. Hence any attempt to deprive anyone or group of people of this right must be of concern to us all. The FDA’s decision to exclude some personalities from engaging in any form of promotion or marketing of alcoholic beverage may well have a good objective but what is the effect on the right to expression?

We are of the view that, the net effect of this ban is that, it essentially takes away the guaranteed right of persons who fall in this category to express themselves with regard to their preferred alcoholic beverage and the promotion of same. In short, these Ghanaians have been deprived of their freedom of expression.

Discrimination

The constitution starts off with the the presumption that all persons are equal before the law and shall not be discriminated on the grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status[4]. The constitution defines discrimination as giving “different treatment to different persons attributable only or mainly to their respective descriptions by law, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description[5].

That said, the constitution provides for what can be described as “positive discrimination”. The aim of the “positive discrimination” provisions in the law is to address amongst other things social, economic, or educational imbalance in the Ghanaian society, the imposition of restrictions on the right of foreigner to own land, as well as engaging in political and economic activities. From this brief discussion, it is clear that the constitution does not, at least, on the discrimination leg of the argument contemplate the situation where a group of people are excluded from a pursuing economic opportunities simply because of their influence, image and reputation in the society.

The directive principles of state policy further require that “The state shall afford equality of economic opportunity to all citizens[6].” The terms of this provision is clear. This means that the “well known person” criteria used as a basis to exclude persons from featuring in advertisement is suspect.

Conclusion

It is important to note that there are enough guarantees in the FDA guidelines to ensure that children and underage persons are not lured into alcohol drinking. Guideline 3.2.1 says that an advertisement should have health warnings such as (a) drink responsibly; (b) not for sale to persons under 18 years of age; (c) not recommended for pregnant women; and (d) any other health warnings that may be prescribed by the FDA. The guidelines further say that health warnings on radio, television and social media must be legible; and the health warning should run for the entire duration of the TV and social media advertisement[7].

Further, under the guidelines, an advertisement must not promote or depict excessive consumption of alcohol and the advertisement must not imply that consumption of alcoholic beverage is required for social or professional achievement, personal success, any sporting activity, sexual prowess, pleasure, resolution of social, physical or personal problems or appetite. Similarly, advertisements are prohibited from enhancing or promoting vices, general misconduct or offensive to public morality[8]. And finally, radio and television advertisements shall not be aired between the hours of 6 am to 8 pm [9]. If all of these safeguards are in place, what’s the relevance in barring these well-known personalities from featuring in an alcoholic advertisement?

*** This a joint publication by Reindorf Twumasi Ankrah and Samuel Alesu-Dordzi

[1] See introduction to guidelines

[2] See introduction to guidelines

[3] See glossary of the guidelines

[4] 1992 Constitution, Article 17 (1)

[5] 1992 Constitution, Article 17 (3)

[6] 1992 Constitution, Article 17 (4)

[7] Guideline 3.2.3

[8] Guideline 3.2.8

[9] Guideline 3.2.6