Case of the week: Mark Darlington Osae v. Food And Drugs Authority & Attorney General

Supreme Court · [2024] GHASC 30 · Ghana

Introduction:

This case examines whether a guideline issued by the Food and Drugs Authority (FDA), which prohibits well-known personalities and professionals from advertising alcoholic beverages, contravenes the constitutional guarantee of equality and non-discrimination under Article 17 of the 1992 Constitution.

Facts:

The Plaintiff, Mark Darlington Osae, brought an action in the Supreme Court invoking its original jurisdiction. He challenged Guideline 3.2.10 of the FDA’s “Guidelines for the Advertisement of Foods” (2016), which states: “No well-known personality or professional shall be used in alcoholic beverage advertising.” The Plaintiff contended that the said guideline was discriminatory, as it prevented individuals with public recognition from monetising their goodwill through alcohol endorsements. He sought a declaration of unconstitutionality, an order to strike down the guideline, and a perpetual injunction against its enforcement.

The FDA and Attorney General opposed the claim, arguing the guideline was justified in the public interest and consistent with international public health standards, particularly those from the World Health Organisation (WHO).

Holding:

The Supreme Court dismissed the Plaintiff’s action and in so doing, held as follows:

1. That while the Plaintiff had standing as a Ghanaian citizen to bring the action, the case did not raise new interpretative issues under Article 17, which had already been clarified in Nartey v. Gati. The Plaintiff should have sought enforcement (not interpretation) of the Constitution, and even then, such enforcement of personal human rights fell within the jurisdiction of the High Court.
2. That the Plaintiff failed to demonstrate that Guideline 3.2.10 was discriminatory under Article 17 of the 1992 Constitution which prohibits all forms of discrimination. According to the Court, the restriction imposed by FDA through their guideline applied uniformly to all well-known personalities and professionals, and there was no evidence that the classification was based on proscribed grounds like gender, occupation, or social status.
3. The FDA, acting within its statutory mandate under the Public Health Act, was justified in issuing the guideline to protect public health, especially considering the influence celebrities wield over public behaviour.

Implications of the Decision:

This case confirms that constitutional rights such as equality and non-discrimination are not without limits and must be balanced against public interest considerations. It affirms the power of regulatory bodies like the FDA to impose restrictions grounded in public health policy. Moreover, it clarifies the scope of the Supreme Court’s original jurisdiction and reiterates the distinction between constitutional interpretation and enforcement.

Significant Quote:

“It is therefore very clear that the rights and the freedoms which have been guaranteed under the 

Constitution are not absolute but are subject to limitations imposed, sometimes by the Constitution 

itself and or by Acts of Parliament and that it is also incumbent upon any person who complains of 

discrimination by virtue of acts done under the authority of an Act of Parliament to show that either 

the Act of Parliament or the conduct complained of was not reasonably justifiable in terms of the 

spirit of the Constitution.”  – Asiedu JSC

Commentary/Insight:

This case reflects the careful judicial balance between individual freedoms and public welfare. While the Plaintiff’s desire to defend commercial rights is understandable, the court reaffirmed that such rights must be balanced against legitimate regulatory objectives. It also re-emphasises that the Supreme Court’s original jurisdiction is not a free-for-all forum for the Court’s original jurisdiction is limited to cases involving clear constitutional interpretation and not generalized enforcement of rights, which should be pursued before the High Court.