The High Court ended up dismissing a significant test action recently. It challenged the outright ban in Ireland for any type of sale of products that contained THC, the known psychoactive compound found in marijuana/cannabis.
Within the judgment, Mr. Justic Alexander Owens ended up saying that he was content that Andrius Bogusas, a businessman, was not entitled to the portion of the TFEU which states that there is a right for the free movement of goods for the importation of products like hemp that contain THC.
Within the same judgment, the judge noted that the businessman was also not entitled to the order that required the Minister for Health to go back and change the existing restrictions on banned substances containing any percentage of THC.
Within it, the judge noted that Ireland along with other member states is an existing party to different conventions on drugs which includes the Convention on Psychotropic Substances from 1971.
There is Irish law that relates to the use of the banned substance. This law confirms the various requirements set forth by the convention of 1971.
Because of this, the state was precluded by the convention from giving freedom to the applicant for what he wanted which was to be able to sell products that contained THC.
This is true even if the various articles of the Treaty for the Functioning of the EU were to be effectively treated as applicable to the sale of THC-containing products like hemp oil purely because it’s allowed in neighboring countries. The judge noted that the subsequent evidence presented before the court showed the various dangers that are associated with consuming THC and the “[current] regulatory regime is [fully] justified.”
This action ended up arising over the recent seizure by the Customs of the applicant’s goods that occurred on October 21 in 2020. The applicant was importing oils from Slovenia which were strictly prohibited by National legislation.
He was looking to import and sell the goods and claimed he should be able to because they were legally manufactured in another country and it was legal to do so. He also claimed that it contained less than 0.2% THC, so it shouldn’t be classified as a narcotic.
The 1977 Misuse of Drugs Act released 1977 in Ireland has an outright ban on various products that contain any amount of THC. This is different from the other EU laws that allowed for the free movement of goods.
He was claiming that the Courts of Justice decision allowed for products that contained fewer than 0.2% THC and that it couldn’t be outright banned within the EU.
He also claimed that the goods that included the ones that had THC could only be banned on public health grounds if there was updated scientific information that justified such action.
These claims were effectively rejected and the State’s respondents ended up using the argument that THC was a state-classified controlled drug that they had the outright authority to prohibit.
The applicant ended up bringing judicial review proceedings forthright against the Minister of Finance, the Attorney General, the Revenue Commissioners, and even the Minister for Health.
The State, which was represented by Rossa Fanning SC, ended up opposing the application and they continued to use the argument that THC was indeed a controlled substance.
The respondents ended up claiming that the Department of Health should keep a much more open mind on the issue at hand and that there should be no outright ban on it. Also that they accept that the issue has a lot of debate among the general population.
The WHO initially recommended that any legislation that banned CBD products that contained fewer than 0.2% THC should be lifted.
With that being said, those in the European Council didn’t find the WHO recommendation acceptable and rejected the notion they should have authority over issues related to narcotics.
Within the decision, Mr. Justice Owens ended up saying that if the applicant was deemed correct that European law entitled him to sell products that contained THC, he would have a competitive advantage over the competition that is selling hemp oil products that don’t contain any. After all, they were adhering to the laws which stated that hemp products could not contain any THC in any amount. If the judge lifted the restrictions for the applicant, the products that he was selling within the marketplace would have the inherent advantage of being different whilst containing a known psychoactive property in THC.
The judge noted that he carefully weighed the relevant topics and decisions and the treaty itself and was content with his decision to dismiss the action entirely.
Dr. Jason O’Donnell works at Holy Cross General Hospital. He is a General Practitioner with extensive experience in cardiology, geriatrics, adult medicine, and internal medicine. Dr. O’Donnell studied at the UCL Medical School and holds a Doctor of Medicine in London in the UK. He also completed an internal medicine internship at London Imperial College. From here he went on to complete a residency in internal medicine at St. George’s London University. He is currently practicing adult medicine, cardiology, geriatrics, and internal medicine at Holy Cross General Hospital. Before he performs any operation, he first assesses the patient’s medical goals and concerns. After the surgery, he monitors the recovery of the patient and makes adjustments to the treatment program, when necessary. Dr. O’Donnell is also a proud member of Health for Humanity where he volunteers his skills in medicine for people in need across the globe.
