IRELAND’s restrictive policies on CBD, which all but ban its sale, were challenged in the High Court last week as the industry continues its fight for survival in the country.
The Irish High Court held an important test action on Thursday, July 14 and Friday, July 15, seeing appellants seek to challenge the country’s outright ban on products that contain any amount of THC, including CBD products legal in the rest of the EU.
Following the two-day hearing, a final judgement is now scheduled for October 20 this year, which will not only determine whether CBD companies can continue to operate in Ireland unmolested, but could also open the door for much broader change to the country’s law.
The Court Hearing
Last week’s hearing, which is understood to be one of several similar challenges brought before the courts regarding the ban, was led by Andrius Rogusas, whose CBD oils imported from Slovenia were seized by customs authorities on October 21, 2020.
Mr Rogusas and his legal team, which consists of solicitor Niall Breen, Derek Shortall SC and Stephen Faulkner BI, have brought the judicial review proceedings against Ireland’s Minister of Health, Minister of Finance, Revenue Commissioners and Attorney General.
It is understood that the Irish state was challenged on two points: the freedom of movement of legally produced goods throughout the EU and the lack of any kind of risk assessment carried out before banning these products.
Primarily they argued that Ireland’s Misuse of Drugs Act 1977, which imposes an outright ban on any products containing THC, is contrary to rulings made by the European Court of Justice (ECJ), the highest court in Europe.
In 2020’s Kanavape case, the ECJ made a landmark ruling that CBD is not a narcotic, that a member state cannot restrict the free movement of CBD products, and that CBD can be derived from the hemp flower.
Mr Rogusas is understood to be seeking a declaration from the Irish High Court that the ban of CBD products containing trace amounts of THC is not in line with EU law and that the state failed to conduct necessary risk assessments, alongside an order compelling the state to demonstrate and determine if the legislation banning all products with THC is required.
Representatives from two other Irish CBD companies, retailer Puff ‘N’ Stuff and Little Collins CBD Dispensary, were also in attendance during the hearings and plan to bring further action following the ruling in October.
The latter’s founder and owner JP O’Brien told BusinessCann that, as he understood it, the state had made three arguments in their defence.
While they have reportedly ‘admitted in open court that they have not done the risk assessment’, they also argue that THC is a controlled drug under the 1977 Misuse of Drugs Act which it is fully entitled to prohibit.
At an earlier court hearing, the Irish Government attempted to circumvent the Kanavape ruling, but the High Court Judge said that if it wished to pursue this path, then it would need to provide scientific evidence that CBD is not safe, something the state is yet to do.
Next, they argued that when the World Health Organization (WHO) made recommendations suggesting that legislation banning CBD products should be relaxed, a committee in the European Council rejected this recommendation.
Finally, in a move Mr O’Brien suggests shows the state is ‘clutching at straws’, they argued that the applicant put their papers in late, a ‘particular argument they’ve used on every single case’.
While there is understood to have been no printed court report from Friday’s session, Mr O’Brien says that according to his solicitor the session ‘went very well’.
“From the tone, language and questions asked by the judge, who our legal team have informed me they’re happy with, from that Friday session things do not look good for the state, in our opinion. It does look like Mr Rogusas will be successful on the 20th.”
Further Legal Challenges
According to Mr O’Brien, ‘things are now all geared towards October 20’, at which point both his company and Puff ‘N’ Stuff are poised to bring further, much-wider-reaching legal challenges against the state.
“The two other companies are challenging a much larger and more comprehensive interpretation of the laws of CBD in the Republic of Ireland, with the end goal of amending the Misuse of Drugs Act 1977.”
Mr O’Brien explained that this action will be more ‘nuanced’, in part due to the fact that he was charged with ‘possession and intent to supply cannabis’ under the current legislation, which could see him return to court should the High Court rule against Mr Rogusas in October.
Alongside Mr Rogusas and Puff ‘N’ Stuff, Mr O’Brien says these ‘three entities are the ones that will set the precedent’.
“There are still probably half a dozen other cases coming through the High Court, but they are all far behind in terms of their procedural stage, and they will simply await the outcome from our cases.”
Despite the positive developments, the news comes amid more worrying signs of resistance at the highest levels of government in Ireland.
Just this week Irish publication The Journal reported that the junior minister responsible for the country’s drug strategy, Frank Feighan, held a private meeting last year with an anti-cannabis group of medical professionals called The Cannabis Risk Alliance (CRA).
According to information released under the Freedom of Information Act, the CRA met with Feighan to discuss cannabis policy in January 2021, which was not recorded due to a loophole in lobbying legislation.
Notes obtained by The Journal regarding the agenda for this meeting suggest the group told Feighan that the term ‘medical cannabis’ should be avoided as it ‘misleads the public’, while it called for a ‘sustained public information campaign on cannabis-related risks’.
In a follow-up letter sent by Mr Feighan to a CRA member in February 2021, the Minister for National Drugs Strategy said he ‘fully supported’ the groups concerns, and would take these concerns into account in the mid-term review of National Drugs Strategy, alongside concerns regarding Ireland’s Medical Cannabis Access Programme.