First Published: 5th of August, 2021Last updated: August 8, 2021 at 15:05 pm
With regards to the 1,100 bottles of Brazilian colognes and perfumed products unlawfully seized by the Food and Drug Department, a pre-action letter has been sent to the Food and Drug Department asking them to justify their action.
The letter reads:
215 King Street
Office: (592) 227-1547
Fax: (592) 225-6250
5th August, 2021
The Government Analyst
Food and Drug Department
University of Guyana
RE: Seizure of over 1000 units of Brazilian perfumes and perfume products from Mr. Annandram Persaud
We act on behalf of Mr. ANNANDRAM PERSAUD regarding the matter at caption. Our client is the owner of the products described at caption.
We are instructed that on the 16th day of June, 2021, officers acting on instruction of the Food and Drug Administration seized over 1000 units of Brazilian perfumes and perfume products from our client’s place of business at Lot 56, Third Street, Industry.
We are further instructed that the reason for the seizure as stated in the “Food and Drug Administration Inspectorate Seizure Form” is that it was “seized for foreign language”.
The legislation under which the Food and Drug Administration purportedly acts is the Food and Drugs Act Cap 34:03 and the accompanying Food and Drug Regulations L.R.O 1/2012.
According to Regulations 98-111 of the Food and Drug Regulations L.R.O 1/2012, which apply specifically to cosmetics, there are four requirements for the labelling of cosmetics:
1. The name of the manufacturer or distributor of the cosmetic and the address of his principal place of business;
2. The batch number;
3. The identity of the cosmetic in terms of its common or generic name or in terms of its function, unless the identity is obvious;
4. The net contents in millilitres.
The products all have, on their respective labels, the name of the manufacturer or distributor of the cosmetic and the address of his principal place of business. This cannot be translated as it would become erroneous.
The products all have, on their respective labels, the batch numbers, which comprises a series of numbers.
Regarding the requirement that the product’s generic or common name is referred to on the label, it is our position that the product is obviously perfume and as such the requirement is obviated.
Finally, the products all have, on their respective labels, their net contents in millilitres. These net contents are the same whether in Portuguese or English.
Further, it would appear from perusal of the Food and Drugs Act Cap 34:03 and the accompanying Food and Drug Regulations L.R.O 1/2012 that all mentions of a requirement to have English translations apply to either food or drugs, as cosmetics have been separately defined and separately regulated under the respective provisions.
The reason for this appears clear, as foods and drugs are ingested, while cosmetics are not, so that the respective labelling requirements for cosmetics would be less strenuous.
Indeed, 98-111 of the Food and Drug Regulations L.R.O 1/2012
which is entitled “COSMETICS” pertains specifically to cosmetics and makes no mention of any such requirement for English translation.
However, part II of the Food and Drug Regulations L.R.O 1/2012, which is entitled “FOODS” and seeks to regulate foods in particular, states at section 18 (15) the following:
“The declarations required by paragraph (2) shall be made in English except where a label is applied to a package of food in a country the official language of which is not English the declarations so required shall appear in English on any panel except the bottom of the package”
It is certainly noteworthy to point out that a similar provision is not repeated in part V, which is entitled “COSMETICS”, as mentioned above.
It is an obvious and fundamental principle in statutory interpretation that the Legislature has set out every provision in an Act/Regulation as intended. The Court, in interpreting an Act/Regulation would never declare that a particular provision was omitted from the Act/Regulation by mistake but instead rule that the Legislature intended to omit that provision.
It follows therefore that the Legislature intended to omit any provisions relating to a requirement for English translation from the part of the Regulations which dealt withcosmetics.
Sections 7-8 of the Food and Drug Regulations L.R.O 1/2012 speak to the requirement of clear labelling. These sections are intended to ensure that the characters on a particular label are sufficiently visible. It would be completely erroneous to conflate the requirements set out in these sections with a requirement for a label to be in English.
After all, had the Legislature intended Section 7-8 to be interpreted widely enough to encompass a requirement for product labels to be in English, it would not have needed to go through the trouble of specifying the same in part II of the Food and Drug Regulations L.R.O 1/2012, as set out above.
Given that the Food and Drug Regulations L.R.O 1/2012 is formulated as it is, and given that the common law principles of statutory interpretation are fundamentally based upon logic, it is ineluctable to conclude that the seizure of items from our client on June 16th is unlawful and ultra vires.
Notions of common practice when it comes to enforcement of the Food and Drug Regulations L.R.O 1/2012 are absolutely irrelevant. No matter how long the Food and Drug Administration has been authorising unlawful seizures it cannot make those seizures lawful.
It is however inexpedient to immediately engage the court’s process, some attempt should be made to arrive at an amicable solution.
In order to do this, we call upon the Food and Drug Administration to officially respond to this letter or ideally, to simply agree with its contents and immediately return the seized products to our client.
We would greatly appreciate an expedited response to this letter as our client accrues more damages the longer his products are held by the Food and Drug Administration and the subsequent claim, should the seizure be determined to be unlawful by a court of law, grows larger as the products are held.
Attorney-at-Law | Templar Chambers
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