A High Court Judge has lift­ed the pro­hi­bi­tion against a com­pa­ny sell­ing its ship­ment of en­er­gy drinks im­port­ed from Viet­nam.

High Court Judge Frank Seep­er­sad grant­ed in­ter­im re­lief to Cou­va-based Rollin Mar­ket­ing Com­pa­ny as its ju­di­cial re­view law­suit against Farz Khan, the Chief Chemist/Di­rec­tor of Food and Drugs, of the Min­istry of Health's Chem­istry, Food and Drugs Di­vi­sion came up for hear­ing, yes­ter­day morn­ing.

Dur­ing the hear­ing, Jus­tice Seep­er­sad ques­tioned the le­gal au­thor­i­ty Khan was re­ly­ing on to block the com­pa­ny from dis­trib­ut­ing its ship­ment of Sting en­er­gy drinks to re­tail­ers.

He point­ed out that af­ter Khan in­formed the com­pa­ny that test­ing was re­quired to de­ter­mine whether the lev­els of bac­te­ria and im­pu­ri­ties in the drinks were with­in ac­cept­able stan­dards, the Caribbean In­dus­tri­al Re­search In­sti­tute (Cariri) per­formed the tests and in­di­cat­ed that the drinks were ac­cept­able.

"If the po­si­tion is these drinks are not safe for pub­lic con­sump­tion, this must be premised on le­gal or reg­u­la­to­ry ba­sis," Jus­tice Seep­er­sad said.

State at­tor­ney Rachel Ja­cob in­di­cat­ed that the di­vi­sion had raised con­cerns over the caf­feine con­tent in the drinks but re­quest­ed time for Khan to ap­pear be­fore the court to pro­vide clar­i­ty.

When the case was re­called, Khan in­di­cat­ed that there was no law or reg­u­la­tion deal­ing with safe caf­feine con­sump­tion.

How­ev­er, Khan point­ed to a reg­u­la­tion which he sug­gest­ed re­quired the per­cent­ages of in­gre­di­ents to be list­ed on the la­bels of im­port­ed food prod­ucts and drugs. He claimed that the drinks im­port­ed by the com­pa­ny had a range of caf­feine lev­els and not a de­fin­i­tive per­cent­age.

Khan al­so sug­gest­ed that im­porters were re­quired to pro­vide cer­ti­fi­ca­tion from a Gov­ern­ment body from the coun­try that the prod­ucts em­anat­ed from.

At­tor­ney Kelvin Ramkissoon, who led the com­pa­ny's le­gal team, in­di­cat­ed that his client was not in­formed of the al­leged re­quire­ments be­fore yes­ter­day's hear­ing.

He not­ed that the com­pa­ny sought test­ing from Cariri based on what the di­vi­sion ini­tial­ly in­di­cat­ed. He al­so re­ferred to of­fi­cial cor­re­spon­dence from multi­na­tion­al bev­er­age man­u­fac­tur­er Pep­si­co's Viet­nam sub­sidiary which in­di­cat­ed that the drinks had 190 mil­ligrammes of caf­feine per litre.

Af­ter ques­tion­ing Khan, Jus­tice Seep­er­sad not­ed that the reg­u­la­tions re­ferred to were es­tab­lished in the 1960s and should be up­dat­ed.

He opt­ed to or­der the lift­ing of the pro­hi­bi­tion as he not­ed that the prod­ucts had a rel­a­tive­ly short shelf life.

"I have a reser­va­tion with this prod­uct be­ing with­held when it can im­pose up­on the claimant fi­nan­cial re­stric­tions. There is no in­for­ma­tion that the pub­lic's health would in any way be com­pro­mised if the prod­ucts are dis­trib­uted," he said.

"Clear­ly a bal­anc­ing act that has to be done to keep the pub­lic safe. We must do so in a man­ner that is prac­ti­cal and com­mer­cial­ly sen­si­ble," he added.

De­spite the in­ter­im re­lief be­ing grant­ed, the case will re­main be­fore Jus­tice Seep­er­sad for him to de­ter­mine if the reg­u­la­tions were prop­er­ly ap­plied.

In the com­pa­ny's court fil­ings, ob­tained by Guardian Me­dia, its man­ag­ing di­rec­tor Naren Ma­hadeosingh claimed that on Jan­u­ary 20, the com­pa­ny re­ceived a con­sign­ment of 1900 cas­es of the drink af­ter it paid $44,686.23 in du­ties.

Five days lat­er, it re­ceived cor­re­spon­dence from Khan in­di­cat­ing that it could not dis­trib­ute and sell the drink un­til the bac­te­r­i­al test­ing was done.

Al­though Cariri pro­vid­ed its re­port in March in­di­cat­ing that the drinks were safe, the pro­hi­bi­tion against sale was not lift­ed forc­ing the com­pa­ny to file the law­suit.

Ma­hadeosingh claimed that if the pro­hi­bi­tion is not lift­ed in time and the drinks ex­pire with­out be­ing sold, his com­pa­ny would suf­fer sig­nif­i­cant loss­es in­clud­ing the US$18,601 it paid to pur­chase the ship­ment and im­port it, the as­so­ci­at­ed im­port tax­es and over $50,000 in po­ten­tial prof­its.

Through the law­suit, the com­pa­ny is seek­ing a de­c­la­ra­tion that the pro­hi­bi­tion is il­le­gal, ir­ra­tional, and pro­ce­du­ral­ly im­prop­er as it has met all the health and reg­u­la­to­ry re­quire­ments for dis­tri­b­u­tion and sale.

The com­pa­ny was al­so rep­re­sent­ed by Nizam Saladeen. Lianne Thomas ap­peared along­side Ja­cob for the State. The min­istry was rep­re­sent­ed by its le­gal of­fi­cer Resh­ma Ja­groop.