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High Court challenge alleges Irish anti-drug legislation is against EU free movement of goods

The action has been brought by the owner of a shop which allegedly sells products containing traces of a cannabis related chemical.

Image: Laura Hutton/RollingNews.ie

A BUSINESS WOMAN whose company sells products made from hemp and cannabis has brought a High Court challenge alleging that parts of Ireland’s anti-drugs laws conflict with EU regulations on the free movement of goods.

The action has been brought by Denise Lynch who since April 2021 operates a business known as ‘D Hemp Shop’ at Market Street, Cootehill, Co Cavan and a related online shop.

Those premises were raided by the authorities last September, and several products were seized.

She says that the products were lawfully sourced, but she now fears that she could be prosecuted under the 1977 Misuse of Drugs Act.

In her High Court proceedings, she claims that she has been informed that under the 1977 Act any product that contains any amount of Tetrahydrocannabinol (THC), the principal psychoactive constituent of cannabis, are illegal.

Represented by Micheal O’Higgins SC instructed by solicitor Ciaran Mulholland, she claims that regulations allow products with trace of very small amounts of THC to be lawfully traded within the EU.

Her business sells hemp and cannabidiol (CBD) products, including CBD oils, CBD tea and coffee, vapes and a range of other products.

Some of the products her business offered for sale contained less than 0.2% of THC.

On 24 September last she claims that her home at Corfad, Cootehill, and business simultaneously were searched by the Gardai, the Food Safety Authority of Ireland (FSAI) and the Health Product Regulatory Authority (HPRA).

She claims that she was interviewed about her business affairs, and that various goods at her businesses’ premises were seized and have been retained by the different authorities.

She claims the products were sourced from reputable sources and provided the authorities with certificates of authenticity in relation to the items.

She claims she was told by the authorities during the search that it was suspected that the products seized contained THC, which is a prohibited substance and considered to be a controlled drug under the 1977 Act.

She also claims that she carried out due diligence on all items her business offers for sale to ensure the products comply with EU Regulations.

Following correspondence with the local gardai she fears that she could be prosecuted for having items with trace amounts of THC, which she claims would amount to a breach of her rights.  

She claims that the searches, which caused her considerable stress and upset.

The absolute ban on THC under the 1977 she also argues fails to take account of up-to-date research done on such items, and impacts on EU trading rights. 

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As a result, she is seeking to bring judicial review proceedings against the Minister for Health, the Garda Commissioner, the Government of Ireland, and the Attorney General.

She seeks various orders and declarations including orders quashing the search warrants in respect of her home and business and damages for the alleged unlawful seizure and retention of her goods.

She seeks declarations including that the absolute ban on all products with any level of THC contained in the 1977 Act breaches the principle of the free movement of goods within the EU.

She also seeks a declaration that the inclusion of cannabis contents with less than 0.2% THC content under the 1977 Act is invalid, breaches her Constitutional and EUHR rights, are invalid and are unconstitutional.

She further seeks a declaration that arising out of decisions from the European Court of Justice that it was not lawful for the State to deploy the criminal law against her and search her home and business premises.

The action, which was briefly mentioned before Mr Justice Charles Meenan this week, will return before the High Court in the New Year.

About the author:

Aodhan O'Faolain

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