Chris Allen, Executive Director of Hemp Federation Ireland, elaborates on the Irish authorities’ legal turmoil over hemp and CBD.
HEMP Federation Ireland has advised the EU Commission’s Health Executive of a dangerously confused situation in the Irish justice system following a scientifically unsupported CBD ruling of the Irish High Court in November.
In an extraordinary reading of the KanaVape decision the Irish Court concludes that the EU ruling of November 2020 related only to the CBD portion of the KanaVape product and not to the product itself.
The court judgement, which was published on November 11, confirms that synthetic and isolated CBD products can be considered as EU food but natural hemp extracts, where they contain any trace of THC, are dangerous narcotics in ‘Irish, European and international law’ and must only be available under medical supervision.
The ruling advises that the provisions of Article 34 of the Treaty Forming the European Union (TFEU) do not apply.
Threat To Health!
The Irish Court then relies on World Health Organisation research into the human health impacts of consuming trafficked drugs to determine that products regulated as food by the European Food Safety Authority pose scientifically established risks to human health.
However, the European Commission does not regulate consumer goods where they are narcotics and EU food law does not permit medicines to be presented as food.
Products regulated as food by the European Food Safety Authority are automatically entitled to the free trade protections of Article 34 of TFEU.
Article 34 of TFEU requires Member States to first provide relevant science demonstrating an actual threat to human health before such an approach is adopted.
The World Health Organisation has repeatedly clarified that food containing trace impurities of THC below 0.2% pose no risk to human health, according to available science.
When Irish Health authorities refused to clarify relevant matters of fact, of EU law and of science, Hemp Federation Ireland requested an urgent and immediate intervention from the European Commission to protect Irish citizens, European food consumers and the Irish and European Hemp industry.
In response to a follow up email on January 8, the European Commission advises that HFI’s request is ‘well received’.
The Irish ruling sits in stark contrast to the December 29 decision of the French Council of State which protected the rights of French citizens by correctly applying Articles 34 & 36 of TFEU in compliance with the KanaVape ruling.
The EU Commission is already investigating Ireland’s multiple failures to uphold EU law and the Court of Justice ruling, including a post-KanaVape decision by Ireland’s Minister for Health to define the EU hemp crop as a controlled drug for the purposes of section 13 (1) (a) of the Irish Misuse of Drugs Act 1977.
This intervention allows Ireland’s Minister for Health to subject the crop, all derived products and the entire agricultural hemp supply chain to the strict licensing regime of Section 14 of the Irish Drugs Act.
Although the Minister justified his approach based on a need to protect human life and health, no scientific justification whatsoever was provided.
In May last year, an interlocutory judgement of the Irish High Court had suspended the operation of relevant aspects of Ireland’s 1977 Act in order to protect Ireland’s hemp industry operators from a threat of ‘real and irreparable harm’.
The judge on that occasion upheld the KanaVape decision in its entirety and advised the State defendants that they must first produce scientific data as required by Article 34 TFEU before the hemp crop and products could lawfully be controlled as drugs for the purposes of the 1977 Misuse of Drugs Act.
The November High Court ruling now advises that the Minister for Health was right to take it upon himself to protect Irish hemp farmers from dangerous parts of their crop.
Only the Irish parliament can introduce legislation which creates a criminal offence which didn’t previously exist in the Irish statutes and the intervention appears in serious conflict with the Irish Constitution.
Nevertheless, Irish authorities will today resume the criminal prosecution of Irish hemp industry operators and members of the Irish public who buy consumer goods which are increasingly popular with EU food consumers and are widely available in shops throughout Ireland and Europe.
The extensive confusion that now exists is likely to impact the decisions of the lower Irish Courts in these criminal trials.
Clarifications Urgently Required
Hemp Federation Ireland is hopeful that European authorities will adopt a swift and decisive approach to assist Irish authorities in the correct interpretation and application of EU law in Ireland.
Hemp Federation Ireland members have pending judicial review cases due for immediate hearing in the Irish High Court. These much delayed cases will argue the full scope of EU and Irish constitutional law.
Irish authorities should wait for the outcomes of these cases before pursuing EU food consumers in the Irish courts.
However, as matters currently stand, the November ruling should be of serious concern to the European Commission and to all EU industry operators.
Hemp Federation Ireland is Ireland’s national hemp industry stakeholder body. We represent the common interests of Irish industry operators working with hemp fibre, shive, seeds, leaves, roots, flowers and cannabinoids.
Our membership spans the Irish industry value chain and includes Ireland’s longest established farms and businesses as well as the largest employers in the sector.