Friday, 17 August 2018

Counterfeit, Fake Drugs and Unwholesome Processed Food

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The damage caused by counterfeit, fake drugs and unwholesome processed food is better imagined than experienced.  "Fake and counterfeit drugs are the highest weapon of terrorism against public health in Nigeria given its tendency to ‘kill the masses’.[1]

Nigeria’s bitter experience with counterfeit and fake drugs and unwholesome processed food illustrates the need to strengthen the fight against fake drugs and unwholesome processed food through the use of stiffer penalties prescribed by the law.

In 2009, Nigeria felt the bitter sting of the effects of counterfeit and fake drugs when at least 84 children were killed after taking a teething pain syrup called “My Pikin Baby Teething Mixture”. It was learnt that the teething syrup contained diethylene glycol, a chemical used in the manufacture of anti-freeze and brake fluid which could result in death when ingested. The chemical was obtained by the manufacturers of the drug from an unregistered chemical dealer.[2]

The Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act is a law which prohibits the sale and distribution of counterfeit, adulterated, banned or fake, substandard or expired drug or unwholesome processed food; and the sale, of drugs or poisons in certain premises or places. This law has been amended by the Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) (Amendment) Act which basically introduces stiffer penalties for offences under the Counterfeit and Fake Drugs and Unwholesome Processes Foods (Miscellaneous Provisions) Act and for compensation for victims of the offences from money and property forfeited to the state by the offenders.

The law provides that any person who produces, imports, manufactures, sells, distributes or has in his  possession, or sells or displays for sale, or aids or abets any person to produce, import, manufacture, sell, distribute or display for sale any counterfeit, adulterated, banned, or fake, substandard or expired drug or unwholesome processed food in any form whatsoever commits an offence.  Formerly, under the Act, the punishment prescribed for doing any of the above mentioned acts is a fine not exceeding the sum of N500,000.00 or imprisonment for a minimum term of five years and a maximum term of fifteen years, or both fine and imprisonment.[3] However, the Law has been amended by the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) (Amendment)) Act and the punishment prescribed for the above mentioned acts is now imprisonment for life.[4]

Under the Law, it is also an offence to hawk or sell or display for the purpose of sale; or aid or abet any person to hawk, sell, display for the purpose of sale, any drug or poison in any place not duly licensed or registered by the appropriate authority, including any market, kiosk, motor park, road-side stall or in any bus, ferry or any other means of transportation.

The punishment prescribed under the Act for doing any of the above acts which constitutes a crime is a fine not exceeding N500,000.00 or imprisonment for a term of not less than two years or both fine and imprisonment. It should be noted that this punishment has been made stiffer by the Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) (Amendment) Act, 2015[5] , Which now provides that any person guilty of any of the above acts would be liable on conviction to a fine of not more than N2,000,000.00 or to an imprisonment term of not less than four years, or to both fine and imprisonment.

A person who wants to sell drugs or poison is required to obtain a license and also to register the premises for the sale and distribution of drugs or poison.

A person who wants to engage in the sale of drugs or poison must obtain a license to do so from the Pharmacists Council of Nigeria; Premises Registration for the sale of drugs and poison is also done with the Pharmacists Council of Nigeria.

The Agency charged with the enforcement of the Act is the National Agency for Food and Drug Administration and Control (NAFDAC)
The Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) (Amendment) Act also provides that every drug, poison and unwholesome processed food  products shall be forfeited to the Federal Government and shall be destroyed by NAFDAC.

The Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) (Amendment) Act also provides that in addition to other punishments prescribed under the Act, a person convicted under the Act for any offence created under the Act would forfeit all the assets, money in bank and properties which may have been acquired with the proceeds of the crime to the Federal Government. A Victims’ Compensation Fund is to be created under the Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) (Amendment) Act; a percentage of the money forfeited to the Federal Government by a person convicted under the Act shall be paid into the Victims’ Compensation Fund and victims of crimes under the Act shall be compensated from the Fund.

The Amendment to the law is therefore aimed at deterring persons from engaging in acts criminalised by the Law, punishing severely persons who violate the law and providing compensation for victims of Counterfeit and Fake drugs and Unwholesome Processed Food.

[1] Accessed at  https://thenigerialawyer.com/counterfeit-and-fake-drugs-and-unwholesome-processed-food-miscellaneous-provision-act-amendment-bill-2015/ on 6/4/17.
[2] Accessed at http://www.safemedicines.org/nigerian-children-killed-by-contaminated-teething-medicine on 6/4/17
[3] See section 3 of the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act
[4] Section 2(1)(a)
[5] See section 2(1)b

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