The CBD Conundrum, Part 3. The Legal conundrum
As we have established in previous articles CBD is a natural chemical compound found in cannabis that can result in a wide range of products. In Ireland, we are fortunate to have several passionate Hemp farmers that are active in promoting progress in this industry but have repeatedly found themselves at the forefront of legal issues that have remained unresolved. These legal aspects can often be overly complex and may last years before a resolution is found. There are a number of cases working their way through our Courts system in a “David vs Goliath” battle to regulate our CBD industry.
European and International law
In recent years the European approach to CBD has dramatically changed and this was influenced by many differing factors. Firstly in 2018, the World Health Organisation 2018 declared CBD had “no potential for abuse and no potential to produce dependence”. Alongside this announcement, it is important to note that CBD itself is not specifically mentioned in UN drug control legislation leading to differing interpretations of whether plant-derived CBD is controlled under the 1961 Convention.
In Europe, the regulation regarding Hemp was first established in the 80s which aimed to identify different varieties of cannabis (hemp) that could be cultivated for industrial use, which would allow hemp to fall outside the scope of UN drug control legislation. Today this is seen in EU legislation that permits CBD to be declared a Novel Food on the condition that its THC content does not rise above 0.2%, soon to rise to 0.3%. And EU regulation that permits the growing of Hemp that does not exceed 0.2% THC content. Despite the attempted regulation of CBD in Europe, many problems started to come to the fore. The first “big case” regarding CBD was the Kannavape case.
The Kannavape Case
This case involved an E-cigarette that contained CBD oil in France. The CBD oil cartridges were produced in the Czech Republic, where it is lawful to use the entire Hemp plant in production. In France, only fibre and seeds were permitted to be put to commercial use. These cartridges were imported into France and then sold and distributed. Two directors of Kannavape were prosecuted for drug offences in France. The two directors appealed this prosecution and asked the European Court of Justice to consider whether French national law prohibited the marketing of CBD products which were lawfully produced in another EU country which would be in contravention of one of the founding principles of the European Union, Free Movement of Goods. The Court found that French law was inconsistent with the principle of free movement of goods across the EU. The Court also noted that CBD “does not appear to have any psychotropic effect or any harmful effect on human health” and defining CBD as “a narcotic drug” would breach the spirit of Un Convention frameworks on narcotic drugs. The Court also noted that a restriction of the free movement of goods may be warranted in order to protect public health if the legislation does not go beyond what is necessary in order to obtain the public health objective. In this case, France failed to put forward any acceptable public health argument against CBD. Kanavape won this case and changed the future of CBD across Europe.
This case gave many across Europe the hope that their restrictive CBD laws and regulations would be reformed as a decision from the CJEU is binding on all other member states. Why then are businesses in Ireland still fighting for regulation of CBD products that will respect the ruling of an EU Court?
CBD has exploded in popularity in Ireland in recent years, however, it is currently placed in a precarious position within Irish Law. There is an urgent need for new legislation to govern this grey area. Currently, CBD is governed by the Misuse of Drugs Act 1977 which classifies THC as an illegal substance no matter how low the quantity. This act also governs Hemp as it falls under the Cannabis family, the legislation allows stalk, stem and fibre to be used (once separated from the rest of the plant) which mandates Hemp farmers to destroy any part of the crop that is not the stalk, stem or fibre. However, EU law permits CBD products to be sold anywhere in the EU and Hemp can be grown anywhere in the EU once the THC content remains below 0.2%.
This has resulted in a legal minefield for people, farmers and businesses. From 2020 there was an increase in policing the sale and supply of CBD in Ireland. Customers that bought CBD online found themselves the victim of criminal proceedings, and businesses that sold CBD saw their premises and homes searched with products with tens of thousands of Euros confiscated, leaving small businesses with the loss. These products were all imported from other EU countries, under the 0.2% THC content and legal across the EU. Enough was enough for this business and the fight for regulation of CBD products began. Many of these businesses decided to fight this issue through the courts with several cases currently pending in the Irish Court system.
One recent Irish ruling on the issue was the Jenkins case. This case involved the business owner of a CBD and coffee shop. His home and business were searched in 2020 and quantities of CBD were found and confiscated. The CBD was independently tested to confirm it contained no more than 0.2% THC. Despite this, the DPP chose to pursue a prosecution of the sale and supply of illegal drugs, a crime which if convicted carries a minimum 10-year sentence. Jenkins argued in Court that Ireland’s current Misuse of Drugs Act and prohibition of CBD were against recent EU rulings and regulations. Upon examining both domestic law and EU law the Court confirmed that 0.2% THC products can be imported lawfully. On the issue of Free Movement of Goods, the Court noted that a restriction can only be justified on the grounds of public health (as set out by EU law) in this regard the DPP produced no evidence or argument. The Court also noted that there are several other proceedings awaiting a High Court hearing on similar issues. Due to this Mr Jenkins was awarded a stay on his prosecution pending the outcome of the full case.
This issue has trickled down our Courts system to the District Court in smaller legal developments. Where a couple of weeks ago a person faced prosecution for the sale and supply of illegal drugs when CBD was found in packages he attempted to send in the post, these packages related to a CBD business. In this case, the judge noted the ongoing High Court cases on the matter and the case was disposed of.
There are currently several cases awaiting Court rulings in Ireland, some waiting over 2 years to have their case heard. In July this year, it was announced that a test case had begun in the High Court.
A test case challenging Ireland’s outright ban on the sale of any CBD products was brought by Mr Rogusas who had oils he imported from Slovenia seized by customs as they were prohibited by our national legislation. He claimed like many others these products were lawful in the EU as they contained under 0.2% THC. He argued that this restriction was contrary to EU law. During this hearing, the Irish Government attempted to circumvent the Kannavape ruling by stating it was fully entitled to prohibit CBD under the Misuse of Drugs Act. The judge stated if they wished to pursue this avenue, they would have to provide scientific evidence that CBD is not safe, something the state has yet to do. The case is due back before the High Court on October 13th.
We may be one step closer to the end of this 2-year battle. For now, all eyes are on the High Court and on October 13th.