The Food and Drug Division of the Ministry of Health has been given 14 days to inspect and decide whether it will release third schedule pharmaceutical drugs seized from ASD Services Ltd.
The drugs have been held since August 28, 2020, when they were brought into the country.
The company’s managing director, Allison Manwarring was contacted by the Division on September 2, 2020, and told the company would need to produce a certificate of analysis for the imported pharmaceuticals.
At the time, Manwarring questioned the requirement and was told it was made by the Division’s director, Farz Khan. On September 4, 2020, Manwarring said Khan told her the requirement was an internal policy decision made six months prior.
According to Manwarring, the company had made six imports of the same class of drugs during that six-month period and was never informed of any new policy being implemented.
During a virtual hearing, yesterday in the Appeal Court, Justice Nolan Bereaux, Justice Vasheist Kokaram and Justice Peter Rajkumar overturned the decision made by Madam Justice Maria Wilson to deny the company’s application for judicial review in the matter.
The company, through its attorney Lee Merry, said that it was illegal for the Food and Drug Division to require them to produce a certificate of analysis on the drugs before it was inspected for clearance.
Bereaux upheld this, saying the requirement was illegal, null and void.
“There is absolutely no statutory power in the Food and Drug chemist or in the director of Food and Drugs or even the inspectors under Section 22 to require the parallel importer, as the appellant is referred to in the industry, to produce a certificate of analysis in relation to the drugs that she’s importing into this country via a third party,” Bereaux said.
Bereaux ordered a declaration that the Food and Drug Division had failed within a reasonable time to make a decision for inspection and release of the imported Third Schedule Drugs from the warehouse.
ASD had sought to import 12 lots of drugs and Merry said several of those would expire in January 2022 and would have to be destroyed.
Bereaux also declared that the Division should inspect the remaining drugs within 14 days to decide whether those drugs would be released to the company.
“As public servants, we have to be careful about the decision that we make in so far as it affects people and in doing so, public services must be careful that when they are making decisions that they act within the four corners of the power under the Act, especially when it is going to negatively impact on the person making the application,” Bereaux said.
He said the division would be required to pay ASD’s legal costs, which are still to be determined.