A HIGH Court decision to ignore the ground-breaking KanaVape case could expose the Irish Government to financial penalties and the threat of further sanctions from the European Commission.

Last month the High Court ruled that CBD products containing THC are illegal in Ireland – in direct conflict with the November 2020 KanaVape ruling of the European Court of Justice (ECJ).

The case in question involved Andrius Bogusas, of Dundalk, whose CBD oils from Slovenia were seized by Customs in October 2020, on the basis they were prohibited by national legislation.

The defendant argued they could be imported under European Union (EU) law as established in the KanaVape case, however, in his High Court judgment, Mr Justice Alexander Owens ruled that they are illegal as they contain THC.

Mr Bogusas is said to be appealing and there are over a dozen similar cases currently progressing through the Irish Courts.

European Sanctions

The Irish High Court decision is also being examined by the European Commission as it contravenes the KanaVape ruling which has now been enshrined in EU law.

Chris Allen, Executive Director of Hemp Federation Ireland, which represents many of the CBD and hemp businesses facing prosecution, says it would welcome an intervention by the EC with Ireland’s hemp and CBD industry under threat from a misinformed Government and judiciary.

She said: “We are increasingly finding the Irish authorities to be operating in a less than transparent, honest and ethical fashion. The Government and the courts are failing to follow EU law and the rulings of higher courts and this is having a seriously detrimental effect on the Irish hemp and CBD industry.

“We understand the European Commission is actively assessing the situation in Ireland. We welcome its interest in the case and expect it to act to protect the rights of our long established industry to continue to exist.

“The Irish Government and courts fail to understand that CBD products containing  0.2% THC are within European Food Safety Authority’s remit, are legal across the European Union and therefore cannot be banned in Ireland.”

Extraordinary Divergence

Ireland’s High Court mis-step effectively determines the CBD in the KanaVape product is legal, but the product itself is not, which Ms Allen has described as an ‘extraordinary divergence’.

Ireland is defending its position with reference to its own 1977 Misuse of Drugs legislation which it says is derived from the 1971 UN Convention on Psychotropic Substances, which outlaws trade in narcotics.

However, in doing so it is choosing to ignore the EU Court of Justice and a previous High Court Judgement from earlier this year made by Justice Emily Egan which upheld the KanaVape decision.

In this case Mark Jenkins faced three separate sets of charges under the 1977 Act over CBD products offered for sale at the two Re-Leaf businesses he owns in Tipperary and Waterford.

However, Justice Egan ruled that Mr Jenkins had made an arguable case that the products seized in February 2020, complied with EU regulations.

Husband and wife team JP O’Brien and Ide Clancy operate the Little Collins CBD Dispensary, which was raided by police in January 2021 and warned their products contravene the Misuse of Drugs Act.

Property Infringement

They are asking the High Court to deem the criminal drugs charges brought against them under the 1977 Act as ‘unconstitutional, an infringement on their property and livelihoods and a contravention of EU law’.

Mr O’Brien told BusinessCann they are now waiting to hear further details on the Bogusas appeal before progressing their more expansive case in the High Court.

BusinessCann has approached both the Irish Departments of Health and Justice for comments in relation to these events. The Justice department says it is a matter for the health, and it is yet to respond.

Likewise we have been promised a response from the European Commission, but it has yet to materialise.

If a country chooses to ignore European law the EC can launch a formal infringement procedure against the country in question. Possible sanctions facing Ireland include fines and, or the withdrawal European funding.