Lawyers argue Irish laws on CBD oil are in contrary to EU free trade

By Declan Brennan

Lawyers for a man facing trial for drug dealing charges in relation to CBD oil have argued that the Irish laws prohibiting it were contrary to EU free trade laws.

The man, who cannot be named for legal reasons, is charged with unlawful possession for sale or supply of tetrahydrocannabinol (THC) on May 31, 2019 at his Dublin city home.

In an application to Dublin Circuit Criminal Court to have the charge dismissed made last week, his defending counsel Keith Spencer BL said that his client was using cannabidiol (CBD) oil, a derivative of the Cannabis plant, for its health benefits for himself and his partner.

Counsel said that after his arrest the defendant, a 44 year old man, told gardaí that using the oil calmed him down, opened up his lungs and helped him to breathe.

He said it also helped his partner to treat her alopecia.

The defendant told gardaí that he had bought the CBD oil online from a business in Northern Ireland. He said it had a THC content of less than 0.2 per cent which he believed means it was legal here as well as in the UK.

Mr Spencer said that CBD oil was prohibited across the board in this State, but submitted that “the authorities had for a long time been acquiescing with the sale of this type of oil”.

He said that the blanket prohibition of CBD oil ran contrary to EU law.

Mr Spencer referred to a decision by an EU court in an appeal against criminal proceedings in France in relation to the marketing and distribution of hemp oil electronic cigarettes, which noted the CBD oil used was lawfully produced in the Czech Republic.

The European court ruled in December 2020 that EU laws concerning the free movement of goods precluded national law prohibiting the marketing of CBD lawfully produced in another Member State, unless that legislation is appropriate for securing the attainment of the objective of protecting public health and does not go beyond what is necessary for that purpose.

Mr Spencer stated that CBD oil with levels of THC lower than 0.2 per cent did not amount to a narcotic and were not psychotropic or psychoactive substances.

He said that the blanket prohibition is not supported by any health concerns and the criminalising of possession of the oil is an overboard and blanket restriction.

Judge Melanie Greally ruled against the application, stating that a challenge to the regulations as they stood may be a more appropriate course for the defendant to take.

She said she was aware that the making of the application by the defendant “may be an exercise which may be necessary to lay the basis for an application elsewhere”.

She adjourned the case to May 3, next, for mention and remanded the accused on continuing bail.

The application was brought under section 4e of the Criminal Justice Act, 1999 and could not be reported until today as the legislation requires the permission of the court at the request of a defendant.

On Monday afternoon (yesterday) Mr Spencer told Judge Greally that his client has no issue with reporting of the matter and Judge Greally gave the requisite permission.