These days, it seems as if every advertisement aired on television or radio has a voice at the end saying, “This advertisement has been vetted and approved by the FDA.” Even on billboards all around town and in the print media, this statement is present.

Here’s the thing you should note: it’s not all advertisements that have this statement. It just so happens that a lot of the advertisements that catch our attention are for either pre-packaged food, alcoholic beverages or energy drinks. And there’s a reason why all these advertisements have to be vetted and approved by the FDA.

The Public Health Act, 2012 (Act 851) which establishes Ghana’s Food and Drugs Authority (“the FDA”), as the primary national body to provide for and enforce standards for the sale of food, herbal medicines, cosmetics, drugs, medical devices and household chemical substances ^[1], also grants the FDA the authority to issue guidelines and codes of practice in connection with food and drugs, or any other product regulated by the FDA.^[2]

The Public Health Act goes further to provide examples of matters that these guidelines and codes of practice should address. One such matter is the advertisement of food.^[3]Just to put things in context, it seems prudent to consider how the Public Health Act defines an advertisement. An advertisement, according to the Public Health Act, includes “a representation by any means for the purpose of promoting directly or indirectly, the sale or disposal of a product regulated by the FDA.”

The use of the word “representation” evidences how broad the scope of this definition is. Instagram food vendors who post pictures and videos of their food to entice their followers online to make purchases; minivans with loudspeakers that go round neighbourhoods encouraging passers-by to buy their pre-packaged food and even the women who carry waakye or Jollof in big pans on their heads in the market, shouting words in a funny manner to attract customers might all be seen to be advertising food under the Public Health Act. It is possible that this is the lawmaker’s attempt to catch as many “fishes” as possible in its large regulatory net.

Anyway, I digress.

The focal point of the discussion is rules that govern the vetting and approval process of the FDA in relation to advertisements. In pursuance of the power granted the FDA by the Public Health Act to issue Guidelines, the FDA in 2016, issued its Guidelines for the Advertisement of Foods (“the Guidelines”).

The first thing to note is the fact that, according to these Guidelines, the FDA’s power to vet and approve advertisements is in relation to advertisements for only pre-packaged foods (whether locally manufactured/prepared or imported into Ghana), alcoholic beverages and energy drinks.

The Guidelines define what is meant by the term “advertisement”. The Guidelines state that “advertisement” is a “public notice, either by print or electronic media, offering or promoting the sale of a food product.”^[4]

What this means is that even though the Public Health Act grants the FDA the power to make guidelines to regulate all forms of representations which directly or indirectly promote the sale or disposal of any product regulated by the FDA, these guidelines that the FDA has chosen to adopt, only regulate public notices, which are either in print or electronic media which offer or promote the sale of a food product. This narrows down the definition given in the Public Health Act to notices that are addressed to a public audience.

The Guidelines are clear on the fact that pre-packaged food, alcoholic beverages and energy drinks cannot be advertised unless these products are registered with the FDA.^[5]Once an advertisement for pre-packaged food has not been approved by the FDA, no person has the legal right to broadcast such an advertisement on their medium— medium here refers to any tool that may be used to store and deliver information on data, e.g. print, social media, radio and television.^[6]

It is important to note that the Guidelines prescribe that no one is to advertise a pre-packaged food as a preventive or a cure for a disease, disorder or an abnormal physical state.^[7]The definition for pre-packaged food, according to the Guidelines, is “any food substance packaged or made up in advance in a container, ready for offer to the consumer, or for catering purposes.”^[8]

To better understand the implication of this provision, it is prudent to consider what even constitutes food, in the eyes of the FDA. The Guidelines only define what pre-packaged food is but not what food itself is.

For this reason, let’s refer to the Public Health Act for an appropriate definition of food. According to the Public Health Act, “food” includes water, a food product, a live animal or a live plant and a substance or a thing used, capable of being used or represented as being for use for either human or animal consumption whether it is live, raw, prepared or partly prepared.^[9]The definition mentions other things but for the purposes of our discussion, only the portion paraphrased above is relevant.

Once water is described as food, it will as well constitute pre-packaged food under the Guidelines, since it is already packaged in bottles and sachets, ready for consumption. This means that advertisements for water are to be vetted and approved by the FDA. And any advertisement for water should not represent the water to be a preventive or a cure for a disease, disorder or abnormal physical state.

This immediately brings to mind advertisements that many “men of God” make these days on their privately owned television channels for the sale of their branded “holy water.” Some prophets and men of God emphatically state that they have for sale “holy water” which can cure diseases such as cancer and HIV/AIDS. But wherein lies their proof? Also, has the FDA paid attention to these persons? What is being done to regulate their industry?

The Guidelines further require all advertisements for pre-packaged food to be accurate, complete, clear, and designed to promote credibility by the general public.^[10] No statements or illustrations used in the advertisement should mislead either directly or impliedly. Any advertisement that brings the food industry into disrepute or undermines confidence in the advertising or in the food itself, will not be approved by the FDA.^[11]

Sedinam Botwe is a final year law student at the University of Ghana, Legon who actively enjoys writing and research. She has a blog of her own where she discusses seemingly ordinary life situations and their not so obvious legal implications.

References

[1]Section 81 of the Public Health Act, 2012 (Act 851).

[2]Section 148(1) of the Public Health Act, 2012 (Act 851).

[3]Section 148(2) (b) of the Public Health Act, 2012 (Act 851).

[4]Section 2 of the Guidelines for the Advertisement of Foods.

[5]Section 3.1.1 of the Guidelines for the Advertisement of Foods.

[6]Section 3.1.3 of the Guidelines for the Advertisement of Foods.

[7]Section 3.1.5 of the Guidelines for the Advertisement of Foods.

[8]Section 2 of the Guidelines for the Advertisement of Foods.

[9]Section 149 of the Public Health Act, 2012 (Act 851).

[10]Section 3.1.6 of the Guidelines for the Advertisement of Foods.

[11]Section 3.1.7 of the Guidelines for the Advertisement of Foods.