Businessman challenges prosecution over selling CBD products

A businessman operating two coffee shops and retail outlets has claimed his prosecution under the Misuse of Drugs Act over selling products containing CBD breaches EU law.

Under the name “Re-Leaf”, Mark Jenkins operates outlets at O’Connell Street, Clonmel, Co Tipperary and Mary Street, Dungarvan, Co Waterford, specialising in selling food products containing cannabidiol and/or cannabidiol derivatives known as CBD, with 0.2 per cent tetrahydrocannabinol coderivatives (THC), as well as hemp related products.

Both outlets are registered as “food businesses” with the HSE and subject to regular inspection by environmental health inspectors.

Mr Jenkins, of Bothar Mochuda, Lismore, Co Waterford, claims cultivated hemp, CBD and CBD derivatives are deemed to be controlled drugs under the Act without any regard to the level of THC in them. Products that are neither narcotic nor psychotropic due to having THC levels below 0.2 per cent are captured by the definition of controlled drugs, he complains.

The level of THC in the products is beneath the levels permitted concerning prescription and supply of cannabis for medical reasons, he says.

He is being prosecuted for selling a product which, he contends, should not be classified as an unlawful controlled drug under the Act and which is freely available on the EU open market.

“I am operating a legitimate business permitted by EU law,” he said in an affidavit.

Mr Jenkins has brought High Court proceedings against the Director of Public Prosecutions and the State over three prosecutions against him under the Misuse of Drugs Act.

Gardai, on foot of a search warrant, entered the Clonmel premises on February 11th 2020 and seized eight bags and one white container, all containing green plant material.

Charges

Mr Jenkins was later charged with having cannabis on February 11th 2020 for sale or supply contrary to the Misuse of Drugs Act. He is also charged with having cannabis and cannabis resin for sale or supply at the Re-leaf premises in Clonmel on July 4th 2020 and having cannabis on May 2nd 2020 for sale or supply at Ballyrafter, Lismore, Co Waterford.

Pending the outcome of his High Court challenge, Mr Jenkins, represented by Conor Power SC, with Conor Hennessy BL, instructed by EA Ryan & Company Solicitors, secured an injunction from the High Court this week restraining his prosecution before Clonmel District Court on charges concerning the product seized by gardai on February 11th 2020.

Ms Justice Emily Egan indicated she expected the DPP to take a “pragmatic” approach concerning the other charges and returned the case to next month.

Among various claims, Mr Jenkins claims his prosecution is unfair, unreasonable and invalid under EU law due to an alleged lack of clarity regarding the Act’s application to CBD derivatives with 0.2 per cent THC content.

He wants the High Court to declare industrial hemp is an agricultural/food product within the meaning of EU law.

He is seeking damages, including aggravated and exemplary damages, over alleged interference with his rights, including to property, privacy, his good name and to earn a livelihood.

Mr Jenkins claims the charges against him concern green plant material sold as a food supplement under the name “Harley Quinn” or “Harlequin”. Gardai, having sent the green plant material seized on February 11th 2020 for testing, stated it was analysed as testing positive for cannabis, he said.

He claims the Harley Quinn/Harlequin product is derived from hemp, contains CBD, is not a narcotic drug and has no psychotropic effects because it contains very low levels of THC. The product was clearly labelled to this effect and an independent analysis of it confirmed the THC content does not exceed 0.2 per cent, it is claimed.

Mr Jenkins has also secured inspection orders for analysis of the material seized on the other dates.

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