In her second such decision, Chief Justice Yonette Cummings-Edwards earlier this month ruled that the Government Analyst-Food and Drug Department (GA-FDD) acted lawfully when it refused entry of a container of ‘sweetened condensed milk’ into the country.
The aggrieved importer, Looknauth Durbhiji, plans to appeal.
Following the denial of the container of `Best Milk’ into the country in February, Durbhiji, through his attorney Anil Nandlall, moved to the court to challenge the decision. The GA-FDD was listed as the respondent in court documents. Judy Stuart, an attorney attached to the AG’s Chambers represented the department.
According to a release from the Attorney General’s Chambers, on December 13, Justice Cummings-Edwards discharged the Order or Rule Nisi of Certiorari granted in the businessman’s favour. This was done after the court was satisfied that the GA-FDD had shown sufficient cause that the decision made on the February 4, 2016 to refuse entry to the applicant’s container currently detained by the Guyana Revenue Authority (GRA) was “lawful and done in accordance with the Food and Drugs Act, Chapter 34:04 and Food and Drugs Regulations 1977 in conjunction with Section 43 Schedule II of the Customs Act, Chapter 82:01.”
The release explained that in November last year Durbhiji ordered a container of “Best Milk” sweetened condensed milk to be shipped to Guyana. The origin of the product was not revealed in the release.
“The applicant delivered a sample of the product to the Government Analyst-Food and Drug Department/Director of Food and Drug along with the Certificate of Analysis of the product in accordance with Section 22(1) of the Food and Drugs Act, Chapter 34:04. Upon examination and analysis of the product [it was found that] it… failed to meet the requirements as set out in Part IV, Division 5 (Dairy Products) (13) of the Food and Drug Regulation 1977,” the release said.
It stated that in this regard, the businessman’s customs entry form was subsequently stamped “Entry Refused” as the product “was not a dairy product in accordance with the prescribed Act, but a vegetable-based product.”
Nandlall in an invited comment last evening told Stabroek News that this case and another involving a container of condensed milk from Malaysia brought in by Superfoods Inc were filed together.
Last month, the very judge ruled that the GA-FDD had provided sufficient evidence to support its decision to deny entry into the country the milk from Malaysia.
City businessman Rafik Ahmad, the owner of Superfoods Inc, had filed a court action seeking the release of the container of sweetened condensed milk which arrived in Guyana last December. His court action came after months of discussions and was a last ditch attempt to gain possession of the milk, which expired in October.
“I was surprised when the judge ruled against us in the Superfoods matter because in my view the law is very clear in that it requires among other things that an analysis be done by a qualified Food and Drug analyst before it is determined whether or not an item should be prohibited from entering Guyana under the Food and Drugs Regulations,” Nandlall stressed. He said that the analysis and the analysis certificate are of fundamental importance in determining the composition of the ingredients of the particular product. He said that unless these scientific examinations are done, any attempt to determine what the chemical ingredients are would be “capricious, arbitrary and whimsical.”
According to Nandlall, in neither of the two cases was any analysis of any kind done. “The Food and Drug analyst apparently came to his conclusion merely based on reading the ingredients on the labels of the items. This is clearly not what the law requires,” he said, adding, “If that was sufficient then the law would not have required the analysis to be done accompanied by an analysis certificate.”
On that ground alone, Nandlall said, the decision of the GA-FDD to condemn the items should have been quashed. “Unfortunately the judge held a different view. I was surprised when the first decision was given and I knew once that decision was given in that particular manner, consistency would dictate that this second case would have been determined similarly. But as I said, the Superfood decision has been appealed and this decision will be appealed,” he said.
He noted too that what was regrettable in this latest case was that the items were first held up for several months and then when the case was filed it took another lengthy period for it to be determined. He said that by the time the decision was delivered the milk had already expired.
“Therefore even if these litigants had won the case it would have been a pyrrhic victory only because the milk had expired already,” he said.
