Judge rules on challenge to Ireland's outright ban on sale of cannabis products

The High Court has dismissed an important test action challenging Ireland's outright ban on the sale of any products containing the principal psychoactive constituent of cannabis.

In his judgement Mr Justice Alex Owens said he was satisfied that businessman Andrius Bogusas was not entitled to rely on a section of the Treaty that allows for the Functioning of the EU (TFEU) that allows for the free movement of goods to import or sell hemp oil products that contain Tetrahydrocannabinol (THC), which is the psychoactive constituent of cannabis, in Ireland.

The judge also said that Mr Bogusas, of Crowe Street, Dundalk Co Louth, who wanted to import and sell products with a small about of THC, was also not entitled to an order requiring the Minister for Health to revisit the current restrictions on substances that contain any amount of THC.

The judge said that Ireland and other member states are parties to various Conventions on Narcotic Drugs, including the 1971 Convention on Psychotropic Substances.

Irish Law relating to the permitted use of THC, which largely bans the substance from being offered for sale in any concentration, conforms with the requirements of the 1971 convention, the Judge added.

 The State he said was therefore precluded by the 1971 convention from permitting what the applicant wants.

Even if Articles of the TFEU were to be treated as "presumptively applicable" to the selling of hemp oil containing THC in Ireland because it is allowed in other EU countries, the judge said that the evidence before the court had shown the dangers associated with THC and the "present regulatory regime is justified."

The action arose over the seizure of the applicant's goods including oils that he imported from Slovenia, by Customs on October 21st 2020, last on the basis they were prohibited by national legislation.  

The applicant who wished to sell the products claimed that the goods were legally made in another EU country, and contained less than 0.2% THC. He claimed that items with that amount of THC do not constitute narcotic drugs.

He also claimed that Ireland's 1977 Misuse of Drugs Act, contains an outright ban on all products containing any amount THC is contrary to EU laws concerning the free movement of goods.

He claimed that a decision of the Courts of Justice of the European Union allows products with less than 0.2% THC to be manufactured and sold within the EU, and that such products cannot be completely banned.  

Mr Bogusas argued that the products, including ones containing THC, can only be banned on public health grounds on the basis of up-to-date scientific data and assessments of said products. 

The claims were denied, and the State respondents argued that THC is a controlled drug, which it is fully entitled to prohibit.
The businessman brought judicial review proceedings are against the Minister for Health, Minister Finance Ireland and the Attorney General, and the Revenue Commissioners where he had sought various orders and declarations from the court.

These include a declaration that the absolute prohibition of all products containing any level of THC as contained in the 1977 Misue of Drugs Act has not been determined in compliance with EU law.

He also wants the declaration that the State has failed to carry out the necessary assessments taking in account of the results of international scientific research to determine if the legislation is necessary. 

He claimed that there was an obligation on the State to carry out of scientific tests and assessments of products containing THC to determine if any outright ban on these items can justified.  No such tests have been carried out on the products such as the one's seized, he alleged.

The action is one of several similar challenges brought before the courts where the State's ban on products containing THC have been raised. 

The State represented by Rossa Fanning SC, with Bairbre O'Neill Bl, opposed the application and had arged that "THC is a controlled drug."

The respondents claimed that the Department of Health does keep an open mind on the issue of the outright ban and accepts that the issues is one where there has been debate. 

The World Health Organisation had made a recommendation to the effect that legislation banning CBD products with 0.2% THC should be relaxed.   However, bodies including a committee of the European Council that considers issues to do with narcotics rejected the WHO's recommendation, the court heard.

In his decision Mr Justice Owens said that if the applicant was correct European law entitled him to an advantage in the market over competitors who have taken care to sell hemp oil products that are free of THC.

The judge said having considered and analysed the relevant decisions from the EU Courts and the treaty itself the court was satisfied to dismiss the action.

He said that the EU Courts had "not concluded as a fact" that THC is "not a harmful drug" or product.

The EU Courts had also not made a finding that the 1971 Convention permitted the marketing to the public of psychoactive drugs in preparations that contain a small amount of that drug.

Mr Justice Owens added that he was bound to follow the conclusions of law made by the European Courts and must apply those findings to the facts established in this particular case. 

He also noted in his decision that the 0.2% Threshold had been arrived at by a WHO Committee on Narcotics because it would be difficult for some states to chemically analyse medical products such as Epidiolex, used to treat seizures, that typically contain 0.15% THC.   

The evidence in this case, he said, established that the hemp oil which the applicant wished to import and sell in Ireland contains THC, and Irish law and the 1971 Convention does not allow such a course.

The judge also ruled that the action was brought outside of the three-month legal time limit allowed to bring such a claim.
 The court was not satisfied from the evidence to justify making an order extending the time to allow to have the seizure of his goods judicially reviewed.