DEREK ACHONG

Se­nior Re­porter

derek.achong@guardian.co.tt

A food dis­tri­b­u­tion com­pa­ny has won its law­suit over be­ing pro­hib­it­ed from sell­ing its ship­ment of en­er­gy drinks im­port­ed from Viet­nam.

In a judg­ment de­liv­ered yes­ter­day morn­ing, High Court Judge Frank Seep­er­sad up­held Cou­va-based Rollin Mar­ket­ing Com­pa­ny’s ju­di­cial re­view law­suit against Farz Khan, the Chief Chemist/Di­rec­tor of Food and Drugs, of the Min­istry of Health’s Chem­istry, Food and Drugs Di­vi­sion.

In the com­pa­ny’s court fil­ings, ob­tained by Guardian Me­dia, its man­ag­ing di­rec­tor Naren Ma­hadeosingh claimed that on Jan­u­ary 20, last year, the com­pa­ny re­ceived a con­sign­ment of 1900 cas­es of Sting En­er­gy Drink af­ter it paid $44,686.23 in du­ties.

Five days lat­er, it re­ceived cor­re­spon­dence from Khan in­di­cat­ing that it could not dis­trib­ute and sell the drink un­til the bac­te­r­i­al test­ing was done.

Al­though the com­pa­ny sent the sam­ples for test­ing and the Caribbean In­dus­tri­al Re­search In­sti­tute (Cariri) pro­vid­ed its re­port in March in­di­cat­ing that the drinks were safe, the pro­hi­bi­tion against sale was not lift­ed forc­ing the com­pa­ny to file the law­suit.

The com­pa­ny, through its lawyers Kelvin Ramkissoon and Nizam Saladeen, sought an in­junc­tion as it claimed that if the pro­hi­bi­tion is not lift­ed in time and the drinks ex­pire with­out be­ing sold, it would suf­fer sig­nif­i­cant loss­es in­clud­ing the US$18,601 it paid to pur­chase the ship­ment and im­port it, the as­so­ci­at­ed im­port tax­es and over $50,000 in po­ten­tial prof­its.

Jus­tice Seep­er­sad grant­ed the in­ter­im re­lief in June, last year.

In de­ter­min­ing the sub­stan­tive case, Jus­tice Seep­er­sad found that un­der the Food and Drugs Act, Khan had the au­thor­i­ty to seize the ship­ment be­fore it was re­leased to the com­pa­ny by of­fi­cers of the Cus­toms and Ex­cise Di­vi­sion (CED).

Not­ing that there was no ev­i­dence that the con­sign­ment was ac­tu­al­ly seized, Jus­tice Seep­er­sad found that Khan did not have the pow­er to re­lease the con­sign­ment un­der the pro­vi­so that the goods not be dis­trib­uted pend­ing test­ing.

Stat­ing that the pro­vi­sions of the leg­is­la­tion had to be strict­ly fol­lowed, Jus­tice Seep­er­sad said: “There is a dis­turb­ing ten­den­cy for of­fi­cials to in­voke reg­u­la­to­ry pro­vi­sions in an ar­bi­trary and ir­ra­tional man­ner.”

“Such a po­si­tion does not ac­cord with the tenets of good ad­min­is­tra­tion and a com­pre­hen­sive ap­pre­ci­a­tion of the re­mit and au­thor­i­ty vest­ed in of­fice hold­ers cou­pled with the ex­er­cise of com­mon sense and fair­ness could ob­vi­ate the need for many le­gal chal­lenges,” he added.

While Jus­tice Seep­er­sad not­ed that Khan could have tak­en sam­ples for test­ing, he did not have the au­thor­i­ty to di­rect the com­pa­ny to have the test­ing done.

He al­so not­ed that Khan was wrong to have raised is­sues with the caf­feine con­tent of the drinks and to have de­mand­ed that the com­pa­ny pro­vide a list of in­gre­di­ents for the prod­ucts.

“The Act how­ev­er con­tains no up­per or low­er caf­feine lim­it and as a re­sult the De­fen­dant had no ba­sis to in­quire or re­quire the Claimant to pro­vide a spe­cif­ic lev­el of the prod­uct’s caf­feine con­tent,” he said.

“Reg­u­la­tion 18(1)(d) of the Act out­lines that there ex­ists no re­quire­ments for the la­bels of car­bon­at­ed drinks to in­clude a list of in­gre­di­ents,” he added, as he not­ed that Khan’s re­quests were ir­ra­tional.

De­spite his find­ings, Jus­tice Seep­er­sad sug­gest­ed that the case high­light­ed the need to pos­si­bly reg­u­late the im­por­ta­tion of such drinks.

“It is al­so ev­i­dent that these im­port­ed prod­ucts are cost­ly and con­sid­er­a­tion should be giv­en to a re­view of the items which are im­port­ed in­to the ju­ris­dic­tion, es­pe­cial­ly giv­en the scarci­ty of for­eign ex­change,” he said.

“In ad­di­tion, cau­tion should be ex­er­cised and an eval­u­a­tion en­gaged so as to de­ter­mine whether high caf­feine en­er­gy drinks have any ad­verse health im­pli­ca­tions, es­pe­cial­ly on younger cit­i­zens who seem to be the tar­get mar­ket,” he added.

As part of his judg­ment, Jus­tice Seep­er­sad is­sued a se­ries of de­c­la­ra­tions over Khan’s han­dling of the case.

Khan was rep­re­sent­ed by Lianne Thomas and Rachael Ja­cob.