Bogusas v Minister for Health & Ors (Approved)

Factual and Procedural Background

The Applicant claims that European Union law concerning the free movement of goods entitles him to import and market hemp oil preparations containing tetrahydrocannabinol (THC) in the State. He argues that Irish law is inconsistent with other EU Member States where hemp oil containing THC can be marketed for non-medical supervised uses. The Applicant seeks a court order compelling the Minister for Health to review and potentially amend the law to permit THC in hemp oil up to a certain threshold. Additionally, he challenges the seizure and forfeiture of a package containing hemp oil with THC by Customs under the Customs Act 2015, seeking its return, and contends that Irish seizure laws are contrary to EU law.

The seized hemp oil originated from Slovenia. The Applicant asserts that hemp oil containing up to 0.2% THC is lawfully produced and marketed in some EU Member States. However, Irish law aligns with international conventions that restrict THC use to scientific and limited medical purposes. The Applicant's challenge to the seizure was made outside the permitted time limit, and an extension for that time was not granted.

Legal Issues Presented

1. Whether EU law on free movement of goods permits the Applicant to import and market hemp oil containing THC contrary to Irish law.
2. Whether Irish law requiring prohibition of unrestricted public access to THC-containing hemp oil is consistent with EU law and international drug control conventions.
3. Whether the seizure and forfeiture of the hemp oil package by Customs was lawful and whether the Applicant is entitled to its return.
4. Whether the Minister for Health should be compelled to review and amend the threshold tolerance for THC in hemp oil.
5. Whether the Applicant’s delay in challenging the seizure justifies refusal of extension of time for judicial review.

Arguments of the Parties

Applicant's Arguments

• The Applicant contends that EU law on free movement of goods entitles him to import and market hemp oil containing THC up to 0.2%, consistent with laws in other EU Member States.
• He claims Irish law is out of line with other Member States and seeks a court order compelling the Minister for Health to review and amend the law to set a THC threshold tolerance in hemp oil.
• The Applicant challenges the seizure and forfeiture of hemp oil containing THC by Customs, asserting Irish seizure laws are contrary to EU law and should be disapplied.
• He relies on the judgment in Case C-663/18 ("Kanavape") to argue that restrictions on marketing cannabidiol (CBD) products containing THC are incompatible with EU law if no health risk exists.
• The Applicant asserts that hemp oil with THC content not exceeding 0.2% should be lawfully permitted, referencing EU regulations on hemp cultivation and marketing.

Respondents' Arguments

• The Respondents maintain that Irish law complies with international conventions, particularly the 1971 Convention, which restricts THC use to scientific and limited medical purposes only.
• They argue that unrestricted marketing of THC-containing preparations is prohibited under Article 7 of the 1971 Convention and EU law respects these international obligations.
• The Respondents assert that any national law permitting unrestricted availability of THC-containing hemp oil would be contrary to international law and cannot be justified under EU free movement principles.
• They contend that Irish controls on THC in hemp oil are justified on public health grounds under Article 36 TFEU, supported by scientific evidence and expert reports.
• The seizure of the hemp oil package was lawful under the Misuse of Drugs Regulations 2017, as THC-containing products are controlled substances not permitted for import without license.
• The Respondents argue the Applicant’s delay in seeking judicial review is unjustified and does not meet criteria for extension of time.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the Applicant’s claims in light of EU law, international drug control conventions, and Irish statutory provisions. It found that THC is a Schedule I psychoactive substance under the 1971 Convention, which requires prohibition of all use except for strictly regulated scientific and limited medical purposes. Irish law conforms with these obligations by prohibiting unrestricted public access to THC-containing products.

The court noted that EU law, including Articles 34 and 36 TFEU, generally promotes free movement of goods but permits Member States to impose restrictions justified by public health concerns. The court found the Irish restrictions on THC-containing hemp oil justified on health grounds, supported by scientific evidence and expert reports indicating potential harm and risk of abuse.

The court distinguished cannabidiol (CBD), which is not a controlled substance and may be lawfully marketed, from THC-containing preparations, which remain tightly regulated and prohibited for unrestricted public sale. The judgment in Case C-663/18 (Kanavape) was considered but held not to permit the Applicant’s claims regarding THC.

Regarding the seizure and forfeiture of the hemp oil package, the court found the seizure lawful under Irish law and that the Applicant’s challenge was time-barred, with no sufficient grounds shown for an extension of time.

The court rejected the Applicant’s argument that a threshold tolerance for THC in hemp oil should be set in line with EU agricultural policy thresholds for hemp cultivation, emphasizing that these thresholds do not correspond to safe levels for unrestricted public consumption of THC-containing preparations.

Finally, the court held that unilateral tolerance or non-enforcement by other Member States does not legalize marketing of THC-containing products in Ireland or override international obligations.

Holding and Implications

The application is dismissed.

The court held that Irish law prohibiting unrestricted marketing and importation of hemp oil containing THC is consistent with EU law and international drug control conventions. The Applicant is not entitled to compel the Minister for Health to review or amend current restrictions. The seizure and forfeiture of the hemp oil package by Customs was lawful, and the Applicant’s challenge to it was not made within the prescribed time limits, with no extension granted.

This decision upholds the existing regulatory framework restricting THC-containing products, confirming that EU free movement provisions do not override international obligations to control Schedule I substances. No new legal precedent altering these principles was established. The ruling reinforces the State’s ability to regulate controlled substances to protect public health.