Hannah McCarthy explores the case for regulating cannabis in Ireland.
A confusing patchwork of laws, policies and grey market practices govern cannabis use in Ireland. More needs to be done to ensure the industry is backed by science and proper regulation that supports researchers, businesses and consumers.
A confusing patchwork of laws, policies, and grey market practices now govern cannabis use in Ireland.
Medical cannabis can currently only be prescribed in Ireland for a limited number of medical conditions and requires a special ministerial license for prescribed treatment to be imported from another EU country.
Separate to the ministerial license regime is the long-overdue Medical Cannabis Access Program (MCAP) which will provide patients with access to three types of treatment from pharmacies in Ireland for a limited number of conditions when it starts operating this year.
Meanwhile, cannabis oil and food products that are permitted under EU regulations for “novel foods”, but which are not technically legal in Ireland, are sold in Irish shops on the ‘greyish market’ and regularly subject to seizure and confiscation by customs officials and Gardaí.
The lack of direction and initiative from the Government on medical cannabis, CBD products and a domestic grow industry has achieved the impressive feat of leaving pretty much nobody happy with the status quo.
Acronyms of contention: CBD and THC
One point of contention for health and food regulators has been the differing effects of two components of the cannabis plant: cannabidiol (CBD) and tetrahydrocannabinol (THC).
CBD is non-psychoactive i.e. this isn’t the part of the cannabis plant that will give you “a high”, whereas THC is psychoactive and, if consumed in high enough doses, can get you in the clouds.
CBD has been used by people to manage insomnia and anxiety while THC has been used to treat seizures, chronic pain, and nausea.
What does the EU think about all this?
EU regulations, which have a direct effect in Ireland, permit the growing of cannabis plants where the THC content does not exceed 0.2 % (decimal points are important, folks).
More recently in November 2020, the court of justice of the European Union held that CBD is not a narcotic because “it does not appear to have any psychotropic effect or any harmful effect on human health based on available scientific data.”
The court further noted that the cannabis plant from which that substance at the centre of the EU court proceedings was extracted, “has a THC content not exceeding 0.2%”.
On this basis, the court ruled that a ban in France on the marketing of CBD products that contains less than 2% THC, was contrary to the EU principle of free movement of goods.
So, surely Ireland has to follow that EU regulation?
Yes, but it hasn’t, even though it’s supposed to.
Under the Misuse of Drugs Act, 1977, a product with any trace of THC is illegal in Ireland; anyone found in possession of products with THC faces fines and a possible prison sentence for repeated offences.
Confusingly, the Irish Food Safety Authority (IFSA) however states on its website that certain varieties of the hemp plant with a THC content of less than 0.2% are legally grown in Europe and are listed in the EU’s ‘Common Catalogue of Varieties of Agricultural Plant Species’.
So, CBD products which contain less than 0.2% THC are legal in the rest of the EU but continue to be classed as an illegal drug under Irish legislation?
Yes, but an amendment is expected to be tabled this year to implement the EU regulation in Ireland that permits CBD products with low levels of THC to be sold as a food supplement (as opposed to as medicine which has a much more rigorous regulatory framework).
The Gardai released a statement in February that, “whilst there is no legal exemption for CBD products containing any amount of THC, it is envisaged legislation will be amended in the future to exempt CBD-based products containing trace amounts of THC at levels not greater than 0.3%.”
While products with any trace of THC remain illegal in Ireland, given the impending amendment, the Gardai might have been expected to give retailers selling CBD products some breathing space. This has not been the case and Gardaí have continued to raid CBD shops around the country and confiscate stoke.
Gino Kenny TD has said that the recent Gardai raid on Little Collins, a Kilkenny shop that sells products like CBD oil and butter, is not an isolated case and several shops selling cannabis products around the country have been targeted.
“It seems like the policy is to close all these shops down and get the small retailers out of the market”, said the Dublin Mid-West TD. It has been noted that larger international companies like Holland & Barrett, who also sell CBD products in Ireland and were found to have been selling products with THC levels above the permissible levels in the UK, have not faced Gardaí raids and confiscation.
So, will that amendment fix the situation for retailers like Little Collins?
Even when the Misuse of Drugs Act is amended, based on the experience of other jurisdictions and given the large varieties of cannabis plants, products and derivatives that are now available, there is likely to be a learning and adjustment period for customs officers and the Gardai.
In Washington DC, medical cannabis has been legal since 2013 and there has been an unregulated adult-use market since 2015.
Meredith Kinner, the co-managing partner at Kinner McGowan, a DC-based law firm that specialised in cannabis businesses, says that her firm continues to see many cases where hemp flower, which is legal, is seized because customs officials or delivery staff think “this looks like marijuana” and decide to alert the local authorities.
“In the case of the hemp flowers, it’s really like showing the certificate of analysis and showing that this is testing under the legal limit for hemp which is 0.3 THC”, says John McGowan, the other co-managing partner at Kinner McGowan and adds that “sometimes just showing that the source is legal and from a state-licensed manufacturer is enough, or sometimes we just pick up the phone and talk to whoever and just explain that this stuff is compliant.”
The need for proper regulation
Ireland needs a “properly regulated and state-controlled cannabis sector”, in Kenny’s view, and until that is introduced, there are going to continue to be issues as growers, retailers, and consumers try and navigate the blunt and grey areas of the law.
Good regulation is not just about providing a new market for businesses, it’s also about protecting consumers.
While many argue that the Gardaí confiscation of CBD products is unfair, the quality issues associated with many of the CBD products currently on offer on the grey market in Ireland should not be ignored.
Last year, the Irish Food Safety Authority conducted a survey of CBD products currently for sale in Ireland and found that 37% of the products surveyed had a THC content that exceeded the safe limit set by the European Food Safety Authority (i.e. less than 0.3% THC).
Also, they found after testing the samples that the CBD content in over 40% of samples varied significantly from the declared CBD content.
Many of the CBD products that are currently on the market in Ireland are of poor quality and contain a fraction of the potency that would be required to have the intended effect on the consumer, in the view of Noel Fitzpatrick, a cannabis researcher, and entrepreneur based in the US.
Fitzpatrick, who studied environmental sciences at UCD, has spent several years working as a researcher in the US with a focus on the effect of cannabis treatment on children suffering from severe epilepsy and medical technology for consuming cannabinoids (for example, CBD and THC).
The New York-based Irish man’s initial experience in the cannabis industry made him realise that there was a lack of scientific understanding and proper standards being used generally in the fledgeling industry in the US.
Fitzpatrick’s focus on the science behind cannabis and its effects led him to develop a medical standard vaporiser that doses cannabinoids to the micromilligram.
Developing medical-grade products is not a quick process and the vaporiser took five years to develop and is now awaiting final FDA approval.
So what could the future Irish cannabis industry look like?
With Covid-19 locking down economies and creating budget deficits, Fitzpatrick believes that many US states scrambled to legalise cannabis to generate revenue, with little regard to science and proper industry standards.
Kenny is also concerned about the future “corporatisation of cannabis consumption”, where large companies come in and take over the supply and retail of cannabis products creating a market similar to that one for alcohol.
McGowan says that in the US “we have seen local businesses just get boxed out by the big fish with resources who can look really good on competitive license applications”.
While many view it as inevitable that the legal cannabis industry will eventually look like the hospitality and retail-focused alcohol industry, Fitzpatrick hopes that Ireland will take the high ground in the global market by being a “scientific leader.”
“No one is producing cannabis to a GMP standard,” says Fitzpatrick, referring to the ‘General Manufacturing Practice’ standard required by pharmaceutical companies.
There seems to be a lot of focus on profit margins and barriers to entry in the cannabis market remarks the cannabis entrepreneur, but less focus on making the cannabis industry a “scientifically plausible industry” i.e. an industry with products backed up by scientific research.
“Ireland has the infrastructure and STEM skills to produce cannabis products to a scientific standard,” says Fitzpatrick “and an opportunity to be a leader in pharmaceutical grade cannabis.”
Despite his talk of scientific moon shots and pharmaceutical standards, the cannabis entrepreneur is still keen to stress the importance of having access to “smokable flowers, or buds” (or, to use the unscientific term: “smoking a joint”).
“The natural makeup of cannabinoids, terpenes, flavonoids, and their cohesive impact, which is commonly called ‘the entourage effect”, is not something that can be replicated in any labs yet,” says Fitzpatrick and adds that “there is a lot of research going into showing empirical proof that this natural combination [found in smokable flowers and buds] has benefits, but the thousands of years of anecdotal evidence that it has the desired effect cannot be ignored.”
The forces of nature, science, medicine, business, and good old-fashioned tut-tutting could push the cannabis sector in Ireland in many directions, which route the Government will be persuaded to take remains to be seen.
Hannah McCarthy is an Irish journalist and lawyer currently based in Beirut. She tweets from @Hannahmc_carthy and grams from @hannah.mc.carthy