EUROPE’S flip-flopping over the status of CBD is allowing the Irish authorities free rein to persecute the country’s hemp and CBD industry, it has been claimed.
Over the coming days a fresh wave of prosecutions of hemp and CBD businesses and consumers is to begin in the Irish courts after the European Commission (EC) declined to sanction the Government.
As BusinessCann reported last month the Irish hemp industry was expecting the EC to penalise Ireland.
This followed a High Court ruling last month that CBD products, with trace amounts of THC, are narcotics in direct conflict with the ground-breaking 2020 European Court of Justice (ECJ) KanaVape ruling.
‘Spectacle of Criminal Trials To Begin’
However, in correspondence with BusinessCann it has emerged that there will be no punitive action as the EC has yet to determine, itself, the status of CBD.
The EC statement said that ‘it is for the Irish authorities to follow-up on the Court judgement’.
However, The Hemp Federation of Ireland (HFI) says the EC must intervene to protect Irish consumers and industry operators as Irish police and courts prepare to proceed with further penal charges and hearings.
The HFI has learnt that following last month’s High Court ruling the Irish Police are set to resume prosecutions against business and individuals. A consumer charged earlier for purchasing CBD products is due to appear in court later this month.
Chris Allen, Executive Director of HFI, said: “Based on this High Court ruling, Irish authorities have decided to resume the criminal prosecution of Irish citizens and in ten days time, a spectacle of criminal trials will begin in the lower Courts.
“These include the prosecution of Irish citizens accused of buying and possessing EU consumer goods which are widely available in shops throughout Ireland and Europe.
“According to the recent High Court judgement in the Bogusas case, hemp related ‘offences’ are punishable by severe penalties, including ‘imprisonment for life’.”
‘More CBD Safety Data Needed’
In supporting comments to its position the EC told BusinessCann that the KanaVape decision is not a free pass as it is yet to be satisfied on the safety of CBD products
It says: “We stress that the Kanavape court case does not amount to free marketing of CBD and that, in particular, EU food law applies.
“We also stress that under the novel food regulation, CBD is not authorised – EFSA has been asked for an opinion but the conclusion is pending until there is more data available on the matter.
“The legislation on Novel Foods allows for new products to be placed on the EU market only after they have been found safe by the EFSA.”
CBD: A Narcotic?
While it’s true that the EC has yet to make a determination on the status of CBD – see paragraph below – Ms Allen pointed out the Irish Court decision is based on the Minister for Health’s claims that CBD products with trace amounts of THC are dangerous narcotics.
And, while EU law allows wriggle room to national authorities in relation to the regulation of consumer goods, health based interventions cannot be arbitrary, and must be justified by science.
Paragraph 88 of the KanaVape judgement says: “A decision to prohibit marketing…can be adopted only if the real risk alleged for public health appears sufficiently established on the basis of the latest scientific data available at the date of the adoption of such a decision.”
Ms Allen pointed out that despite many requests the Irish authorities have yet to provide the necessary data.
She said: “The issue is not the marketing of CBD products but the fact that the Irish Court decided the KanaVape ruling and EU food law don’t apply to CBD containing trace impurities of THC.”
‘Irrelevant To Ireland’
Ireland’s approach to CBD has been to brand it a narcotic with reference to its own 1977 Misuse of Drugs legislation which it says is justified by the 1971 UN Convention on Psychotropic Substances.
Ireland also rejects the principle of the freedom of movement of goods applying to these products, and is therefore in direct conflict with the KanaVape decision of the ECJ.
Ms Allen added: “The European Commission advises BusinessCann that it is for Irish authorities to clarify these matters.
“However, Ireland’s Minister for Health, the Health Products Regulatory Authority and the Food Safety Authority of Ireland have once again refused to clarify anything at all. As a result, there is now a dangerously confused situation emerging in the Irish justice system.
“As a result of the correspondence between the BusinessCann and the EC Hemp Federation Ireland wrote again to the European Commission on December 21 requesting an urgent and immediate intervention.
“We anticipate a swift and decisive response before these utterly bizarre prosecutions get underway in the Irish Courts in January.”
Europe’s CBD Flip-Flops
The EC’s position has fluctuated over the last few years. Originally natural CBD was considered a traditional food, however in January 2019, the EC said it considered all CBD as Novel Food. In July 2020 it changed its mind and, in a ‘preliminary’ decision, said CBD might be a narcotic.
However, in December 2020, following the KanaVape ruling, it said: “We have taken into account the submissions of the (Novel Food) applicants and the very recent decision of the European Court of Justice, and reviewed our assessment…and concluded cannabidiol cannot be considered a drug…this means cannabidiol can be qualified as a food…we are resuming the verification of the validity of the Novel Food applications.”
However, its position shifted once again in July, 2022, when EFSA paused the processing of Novel Food applications.
Prof Dominique Turck, Chair of EFSA’s expert Panel on Nutrition, Novel Foods and Food Allergens said at the time: “We have identified several hazards related to CBD intake and determined that the many data gaps on these health effects need filling before these evaluations can go ahead.”
Although he added: “It is important to stress at this point that we have not concluded that CBD is unsafe as food.”
And he went on to say that there is insufficient data on the effect of CBD on the liver, gastrointestinal tract, endocrine system, nervous system and on people’s psychological well-being.
Ms Allen said the request for further scientific data from applicants is a normal part of the EU Novel Food authorisation procedures, it does not imply foods are unsafe.
However, as Ms Allen has pointed out this should be irrelevant to EU authorities as Ireland’s objections to natural CBD are based on Irish narcotics laws, not EU food laws.
She said: “Novel Food law doesn’t feature anywhere in the Irish judgement. Indeed, the Irish Court fully acknowledges that CBD can legally be sold as food in Europe but believes that natural hemp extracts are regulated as illegal narcotics if they contain any trace of THC.”