High Court dismisses challenge to Ireland’s ban on sale of products with THC

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 judgment, Mr Justice Alexander Owens said he was satisfied that businessman Andrius Bogusas was not entitled to rely on a section of the Treaty 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 amount 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.

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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 by Customs of the applicant’s goods including oils that he imported from Slovenia, on October 21st, 2020, on the basis they were prohibited by national legislation.

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

Ireland’s 1977 Misuse of Drugs Act contains an outright ban on all products containing any amount of THC is contrary to EU laws concerning the free movement of goods, he alleged.

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

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, he claimed.

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 against the Minister for Health, Minister Finance, Ireland, the Attorney General, and the Revenue Commissioners.

The State, represented by Rossa Fanning SC, with Bairbre O’Neill BL, opposed the application and had argued that “THC is a controlled drug”.

The respondents claimed the Department of Health keeps an open mind on the issue of the outright ban and accepts that the issue 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 per cent 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.