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A High Court judge has ruled that the chief chemist of the Food and Drugs Division (FDD) of the Ministry of Health acted illegally and irrationally when it blocked a local distributor from selling imported energy drinks in 2024.
In a judgment on May 26, Justice Frank Seepersad found that the actions of the chief chemist violated the law when Rollins Marketing Company Ltd (RMCL) was barred from distributing 1,900 cases of Sting energy drinks in January 2024. The judge declared the FDD’s directives were “illegal, irrational, unreasonable, procedurally improper, null and void and of no effect.”
RMCL, an importer of beverages from various countries, had purchased the drinks from Vietnam-based Phu Quang Service and Trade Company Ltd. The goods, 380 cases of Sting Red Strawberry and 1,520 cases of Sting Gold, which had an August 2024 expiry, were cleared by Customs after RMCL paid $44,686.23 in duties and stored the consignment at its Couva warehouse.
Five days later, the FDD ordered the company not to sell the products until tests were conducted for bacteria. RMCL challenged the directive, arguing that the goods were already lawfully released and that the directive was baseless and outside the legal powers of the FDD. Testing conducted at the Caribbean Industrial Research Institute (CARIRI) showed the drinks were within acceptable health standards. Despite this, the FDD maintained its hold on distribution, prompting RMCL to approach the courts. In July 2024, the judge allowed the importer to sell the drinks.
In his ruling on May 26, Seepersad ruled that the relevant law, Regulation 8(1) of the Food and Drugs Act, only allowed for the detention of goods before they are released by Customs, which was not the case here.
“The consignment was already delivered out of the charge of customs,” the judge said, adding that there was no authority for the FDD to release the goods on the condition that they not be sold.
“There is a disturbing tendency for officials to invoke regulatory provisions in an arbitrary and irrational manner. Such a position does not accord with the tenets of good administration and a comprehensive appreciation of the remit and authority vested in office holders coupled with the exercise of common sense and fairness could obviate the need for many legal challenges.”
He also criticised the FDD’s handling of concerns about caffeine content in the drinks, noting that there is currently no statutory limit on caffeine levels. “There may well be the need to regulate caffeine content in energy drinks,” he said, especially given their popularity among young people, but said the current law does not allow for such enforcement.
“It is also evident that these imported products are costly and consideration should be given to a review of the items which are imported into the jurisdiction especially given the scarcity of foreign exchange.”
The judge further dismissed the FDD’s demand for RMCL to list ingredient quantities under Regulation 16(1)(b)(i), ruling it inapplicable to carbonated beverages like the energy drinks in question. He suggested that legislative reform may be necessary to mandate ingredient disclosures on such products.
“Amendments to the act should be considered as it may well be in the public’s interest to have the list of ingredients displayed on the packaging of carbonated energy drinks.”
Seepersad concluded that the FDD had no legal power to require RMCL to test its own products or provide a certificate of analysis. “The request of the claimant to provide a certificate of analysis was illegal and ultra vires,” he stated.
The court ordered that the FDD’s decisions be quashed and declared RMCL’s products fit for sale. It also awarded costs to RMCL, to be assessed if not agreed upon.
Attorneys Kelvin Ramkissoon and Nizam Saladeen represented RMCL. Attorneys Rachel Jacob and Lianne Thomas represented the State.
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