Dear Editor,
Sueria Manufacturing Inc’s CEO, Mr Frank Sanichara has accused Director of the Food & Drug Department (F&DD) Marlan Cole, of discriminating against him. He claimed the FD&D has targeted him and imposed unreasonable demands for certificates to authenticate that the food items he imported met the required lawful manufacturing and importation standards.
He also said Mr Cole has incessantly rejected alleged certificates he produced for authentic beverages and baby formula, and seized said items for failure to produce the legal certification. After many public protests against Mr Cole, Mr Sanichara filed complaints with the Ministries of Health and the Presidency.
A Stabroek News report published on December 12, 2016, cited a letter from Minister Norton to Mr Cole which directed him to “first seek his [the Minister’s] clearance before the department makes future forfeitures of food imports,” until he establishes a Food Advisory Committee in accordance with Section 26(a) of the Food and Drug Act. Dr Norton told Stabroek News that “We said to him that he should stop seizing until we establish …the advisory committees on food and drugs so that they can advise and evaluate and to stop that situation of one person making that decision.”
I know and respect Dr Norton. With all due respect, his action was impetuous, misguided and unlawful. It sets a dangerous precedent and undermines food and drug safety and protection in Guyana. The instant matter raises pertinent jurisdictional questions:
1) Does the F&DD have powers to inspect food imported into Guyana and demand certificates of compliance to establish that the imported items meet the legal standards? Yes. The Food and Drugs Act, Part VI: Section 21 authorizes an inspector to enter any place food is “manufactured, prepared, preserved, packaged or stored for sale or sold”; to “open and examine anything therein; to examine any books, documents or records and to seize and detain any item for an investigation…”
2) Does the F&DD have powers to inspect records related the importation of food into Guyana? Yes. Section 22: (1) of the Act mandates that “An inspector has the right to examine any customs entries of food, drugs, cosmetics or devices imported into Guyana.”
3) Does the F&DD have powers to demand a certification of compliance for food imported into Guyana? Yes. Section 32 (2) mandates that “No article of food, drug, cosmetic or device shall be imported into Guyana unless the article wholly conforms to the law of the country in which it was manufactured or produced and is accompanied by a certificate in prescribed form and manner that the article does not contravene any known requirement of the law .”
4) Does the F&DD have powers to seize items imported into Guyana for which there is no certification? Yes. Section 21 (3) of the Act states that “If it appears from the report of the inspector or the analyst that the sale of the food, drug, cosmetic or device (a) would be in contravention of this Act if sold in Guyana, the food, drug, cosmetic or device shall not be admitted in Guyana for use.”
5) No provision of the Act grants jurisdiction or veto powers over seizures or release of items, which an inspector has powers to examine, to the Minister.
The singular power vested in the Minister is to establish regulatory policy under which an inspector may execute his statutory authorities. If an importer believes an inspector acted unfairly, Part VI: Section 21 (7) sets out a process for unjust seizures, which includes compensation for the owner.
As a country, we should not tolerate the politicization of the functions of the Food and Drugs Department. It is too important. This would be the worst way to conduct public policy. The rule of law, at all times, must remain supreme to political considerations or the privileged class, and must be enforced equally and without favour. If Mr Sanichara is so aggrieved, he has a lawful right to challenge the actions of the F&DD in a court of law.
However, the Minister should never second guess professionals who are responsible for enforcing the law to ensure the maintenance of the highest food and drug safety standards in the country. His action undermines public confidence in and dilutes the powers of the F&DD.
Moreover, unless the Minister goes to Parliament to change the law, the Food Advisory Committee also has no powers to approve or disapprove a seizure by an Inspector. Extant law only provides for the committee to “assist and advise the Minister” with respect to food standards, labelling and other matters connected with the manufacture and distribution of foods.
I understand what the Minister is attempting to do in the face of political pressure. However, public policy is serious business. It cannot be executed impetuously on the basis of social status, wealth or political disposition. It must be executed fearlessly and equitably based on the law. We expect the Minister to act accordingly.
Yours faithfully,
Rickford Burke
President
Caribbean Guyana Institute for Democracy
