Strauss Enterprises v. Canada/Minister of Health; judicial review; 2008 FC 1305; Strauss Energy SIX; November 21, 2008

Health Canada decided that Strauss Energy SIX was to be classified as a Schedule F drug under the Food and Drug Regulations, meaning that it still must be supported by a doctor's prescription. Strauss sought to review this decision on the basis that the product should be classified and regulated as a natural health product under the Natural Health Products Regulations, requiring no prescription.

One of the active ingredients in Strauss Energy SIX is yohimbe bark. The compound yohimbine in the bark is believed to have a stimulating effect. Yohimbine has been on Health Canada's list of drugs that require a prescription since 1984.

The arguments in this case centred around whether yohimbe bark and yohimbine are different substances. Strauss argued that they were because if Health Canada wanted to include yohimbe bark on Schedule F it would have. Thus the failure to include it indicates an intention not to regulate the bark. Health Canada only regulated yohimbine and its salts. The Minister conceded that yombine bark and yohimbine are different substances, however its position was that Strauss Energy SIX contains yohimbine and it doesn't matter whether it got there as a constituent of yohimbe bark or as a directly added ingredient.

The Court held in favour of the Minister's decision and referred to a similar situation had been decided by the Supreme Court in R. v. Dunn regarding psilocybin. In that case, psilocybin was listed in Schedule H, however the parent mushrooms were not listed. Yet the Court held that the reference of psilocybin or any salt thereof in Schedule H was sufficient to bring a natural plant product containing that compound within the ambit of the statute. There was no sound reason to depart from that approach in this case.

The Court further held that there was no duty of fairness owed when the Government is interpreting and enforcing the laws of Canada. Interested parties can attack the legal correctness of that interpretation but the Government does not need to give prior notice to or consult with such parties about the correctness of its interpretations before it acts on them.

The full text of the decision can be found at:

http://decisions.fct-cf.gc.ca/en/2008/2008fc1305/2008fc1305.html