Cannabidiol, or more commonly known as CBD, is a cannabis derivative from the cannabis plant. The cannabis plant is made up of two main parts: CBD and tetrahydrocannabinol (THC). CBD is the non-psychoactive portion of the plant whilst THC is psychoactive. CBD is commonly being hailed as a cure to various ailments such as arthritis, insomnia, anxiety, acne and used as a wonder product in moisturisers, lip balms etc.
But is this non-psychotropic, readily available, miraculous cannabis constituent too good to be true? The truth of the matter is, it is much more complicated and a legislative mine field in Ireland.
The legislation dealing with whether cannabis is controlled is very simple in form. Section 1 of the Misuse of Drugs Act 1977, as amended defines cannabis as follows for the purposes of the provisions of the Act:
‘Cannabis’ (except in cannabis resin’) means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) but includes neither cannabis resin nor any of the following products after separation from the rest of any such plant, namely-
(a) mature stalk of any such plant
(b)fibre produced from such mature stalk, or
(c)seed of any such plant.’
The schedule to the act then makes various substances controlled. Amongst these are cannabinol, except where contained in cannabis or cannabis resin, cannabinol derivatives, cannabis and cannabis resin. The act does not contain any limit on the amount of tetrahydrocannabinol that must be contained in order for the substance to be controlled.
What seems to cause confusion in this area is an EU regulation permitting the growing of hemp where THC content does not exceed 0.2% (EU Regulation No. 1307/2013 refers.) Despite this EU Regulation, which is of direct effect in Ireland, the Misuse of Drugs Acts, 1977 as amended is wholly silent on whether concentrations of less than 0.2% in fact is a controlled substance.
What adds further confusion to this area is that regulatory and State Authorities in Ireland seem also to be at odds with their treatment of products containing CBD. Currently the Revenue Commissioners advise that if a product contains any amount of THC, regardless of the concentration and unless otherwise authorised, it is illegal to import, export, possess or supply it without the appropriate documentation issued by the Health Products Regulatory Authority on behalf of the Department of Health. They also view cannabis as a controlled drug under the Misuse of Drugs Act, 1977 to 2015, and as such goods which are being imported into Ireland and that contain THC are liable to seizure under Section 34(1) of the Customs Act, 2015.
In contrast, the Food Safety Authority state on their website that certain varieties of the hemp plant (Cannabis sativa) legally grown in Europe are those listed in the EU’s ‘Common Catalogue of Varieties of Agricultural Plant Species’ and for which the THC content does not exceed 0.2%. If for instance a variety of hemp plant was grown which had a THC content of 0.1%, this appears to be permitted by EU Regulation but amounts to a controlled drug under the interpretation taken by the Office of the Revenue Commissioners.
Some important questions require clarification from the Minister for Justice and Equality in this area as currently it would seem to be that the criminal law creates an offence in respect of any substance which has THC, irrespective of the concentration. The Oireachtas needs to be clear as to whether it takes the view that a product with THC content of less than 0.2% amounts to a controlled substance, in light of the EU Regulation. This ambiguity in the law could be hampering significant investment in this area as well as deterring parties interested in expanding into this field.
Those with an interest in this area should seek early legal advice from our experienced team if considering importing, selling or even buying CBD products.
Niamh Kelly, Solicitor
Michael J Staines & Company