Justice Nareshwar Harnanan earlier this month upheld a decision made by Government Analyst-Food and Drug Department (GA-FDD) to deny entry of a shipment of tuna from China but not before pointing out that there was “misplaced concern” by the agency about intellectual property rights rather than the poor labelling, including the absence of an expiry date.
The judge concluded that the product did not comply with the regulations set out in the Food and Drug Act.
The shipment, which contained 2,000 cartons of tuna labelled ‘Buiwick,’ a name that is similar to the well-known ‘Brunswick’ brand, was imported by Goolmohamad Rahaman, the owner of G. Bacchus Enterprise.
Rahaman moved to the court shortly after the denial of entry in March and Justice Brassington Reynolds subsequently issued an order quashing the decision made by GA-FDD Director Marlon Cole to refuse entry of the product and also ordered that he (Cole) show cause why the order should not be made absolute. Justice Harnanan has since discharged the order.
Before making his decision clear, the judge outlined the arguments presented by both Rahaman, who was listed as the applicant, and Cole, the respondent.
A copy of the ruling stated that the businessman contended that he decided to source and import the tuna manufactured by Tropical Food Manufacturing (Ninbo) Co. Ltd, located in China, after researching the company on the internet. Rahaman, in his affidavit in support of his application to the court for relief, had said that he had visited supermarkets in Florida, USA in search of a “competitive” brand of tuna to sell and came up with a wide variety of options.
The businessman, according to the ruling, “contacted a well-known supplier, Central International Co. located in Canton, Massachusetts, USA” to supply him with ‘Buiwick’ tuna, with the understanding that it will be shipped from China to Guyana.
Rahaman said that he paid US$13,000 for the product, which was shipped from Ningbo, China on January 12, 2017, having satisfied all the legal requirements, including the acquisition of a health certificate and certificate of origin from the Chinese authorities. According to the decision, all the documents were taken for processing to the Guyana Revenue Authority (GRA) and on March 1, 2017 the businessman paid $1,260,000 in customs duty for the ‘Buiwick’ tuna, after which all the documents were submitted to GA-FDD for processing. When the businessman returned two weeks later to collect his documents, he noticed two stamps from Cole, “one cancelled-release stamp and one refusing-release of the shipment into Guyana. Both were dated 20th March, 2017.”
Rahaman contended that no reason for the refusal was given but rather a written press advisory was issued to the effect that entry of the tuna, labelled ‘Buiwick’ instead of ‘Brunswick’ was refused and that the exact address of the manufacturer in the country of origin was not stated in contravention of section 6 of the Food and Drugs Act and Regulation 18(2) (a) (iii).
He contended that Cole misdirected himself on the application of the regulations as the ‘Buiwick’ tuna is one of good standard and complied with regulation 18(2)(iii) regarding the net contents in terms of weight and that the label was not false, misleading and deceptive. He also contended that he legitimately expected to sell the commodity in Guyana as it was “fit and proper” and the decision by the respondent to refuse entry was arbitrary, capricious, ultra vires and of no legal effect.
Cole, it was noted, admitted that the entry was refused and that the businessman was so notified by way of letter, incidentally on the same date of the refusal stamp and media release. The court noted that the letter was written by the respondent to the Deputy Head of the Customs, Trade and Excise Department of the GRA and Rahaman appears to have been carbon copied.
It was noted that Cole contended that the brand name ‘Buiwick’ was “misleading, false and deceptive,” according to the regulations and additionally that the address of the manufacturer was inadequate and the font size of the report on the tuna was non-compliant with the Codex standard. It was also noted that while the samples were taken on March 9, 2017, the preparation of the report was done by the GA-FDD inspectors on March 20, 2017, even though it was dated March 16, 2017. It was stated that Cole deposed that based on that report prepared on March 20, 2017, the letter to the Deputy Head of the Customs was written on the same day advising him of the refusal.
The judge said that Cole made reference to follow up action taken by him in writing to the Director General of the Entry and Exit Inspection and Quarantine of the Peoples’ Republic of China on March 27, 2017, informing of the refusal of entry.
The judge said Cole also admitted that he was written to on March 10, 2017 by Ron Shindler, President of Connor Bros. Clover Leaf Seafoods Company, who advised him that the said company was planning to take legal action regarding the allegation of an infringement of its trade-dress in the ‘Buiwick’ tuna. That letter arrived 10 days before the inspection report of the GA-FDD and action by the respondent. The letter, the court said, specifically requested “assistance to reject the ‘Buiwick’ tuna, which they allege infringed their products they have registered in Guyana.
‘Limited understanding’
The judge, in analyzing the law and outlining his conclusions, said that Cole very clearly outlined the reasons why he refused entry of the tuna; that is, that his sole reason was that the label was found to be false, misleading and deceptive, according to section 6 of the Food and Drug Act. It was stated though that there was no analyst report regarding the contents of the cans not being what is described on the label, that is ‘Tuna flaked in oil’ and ‘Tuna flaked in water.’
It was stated that even though Section 6 of the Act mandates criminal proceedings on an allegation of contravention thereof, section 22(3) does give the Department the authority to not admit an import in Guyana for use as food, if it appears from the report of an inspector or analyst under the Act, that the sale of that food would be in contravention of the Act.
The court opined that Cole demonstrated a “limited understanding” of the regulatory role outlined in the Act, which is verified further by the letter to GRA when Cole described the tuna as being labelled ‘Buiwick’ instead of ‘Brunswick.’ There are no entries on the documentation comprising the record brought to court which held out the tuna to be ‘Brunswick’ but ‘Buiwick’ arrived instead, the decision said.
It was pointed out that clearly the letter from Connor Bros. Clover Leaf Seafoods Company had an impact on Cole as it was sent prior to the inspection and played a central role in his determination that the applicant’s product was found to be false, misleading and deceptive.
The court said that the contents of the press advisory only lead to the conclusion that the GA-FDD, a public regulatory body operating under the provisions of the Act, was deciding issues of possible trademark infringement and/or liability regarding the tort of passing off.
“It remains an uncontested fact that there has been no analysis of the content of the vans of tuna imported by the applicant,” the judge said.
The court said that in the circumstances, had it only been the letter to the Deputy Head of the Customs, Trade and Excise and the misconceived application of Section 6 of the Food and Drugs Act, “this court would have no reservations in making the order nisi issued therein, absolute…However the record produced to this court refers to the actual inspectors’ report of the GA-FDD which was completed on the same day the refusal was communicated to Customs and allegedly to the applicant by carbon copy.”
It was stated that because the address of the manufacturer of the tuna was inadequate, according to the regulations made under the Food and Drugs Act, the inspectors concluded that the product was “not in compliance with the aforesaid regulations.”
The regulations, it was explained, makes it mandatory for labels to carry the name and address of the manufacturer. “Whilst this particular regulation was never cited by the respondent in any communication, either to the applicant or the Customs, Trade and Excise, their passing reference to the test of the regulation mandating the provision of the name and address of the manufacturer on the label is enough to bring it into focus and consideration.”
The court said that at the forefront of its decision is the underlying responsibility to the public, especially regarding food products for human consumption. It said that a perusal of the label supplied as part of the record before the court does not reflect any actual address of the manufacturer.
Therefore, the court said, the issue is whether the tuna complies with the regulations made under the Food and Drug Act as to the sufficiency of the information required on the label. “It is abundantly clear that the label leaves much to be desired. There is no address or coded information relative to an address and the country’s name where it was prepared/manufacturer is merely abbreviated,” the court said, before adding that further consideration, although not stated by Cole, whose “major misplaced concern seemed to be determine intellectual property rights,” is that the fact that there was no date of expiry on the label. The court said that the only reference to a “best before” date is three years from the date of production. It was stated that no other date was stated on the label as being the date of production or any reference to the position in the can where the date of production is placed.
“Whilst the respondent would have in the court’s opinion, failed miserably in its administration of the provisions of the Food and Drugs Act, being the body in charged therewith, the court must attached significant weight to their secondary reliance on the absence of statutory compliance by the applicant regarding regulation 18,” Justice Harnanan said before discharging the order previously granted by Justice Reynolds.
Rahaman was represented by attorney Stephen Knights, while attorney Judy Stuart from the Attorney General’s Chambers represented Cole.
