Indiana’s Attorney General Misconstrues Federal Law in CBD Opinion: CLR Article November 24, 2017

First published in Cannabis Law Report, November 24, 2017.

Rod Kight 11-24-2017

 “No one in Indiana is authorized to sell cannabidiol under Federal or State law, and therefore, any retail establishment selling anything that contains cannabidiol is in violation of the law.” The Opinion concludes with a chilling and deeply flawed conclusion, in which Hill asserts that even individuals in lawful possession of CBD under House Bill 1148, Indiana’s strict epilepsy specific CBD regime, can be prosecuted under Federal law.

Hill’s Opinion appears to be mostly correct regarding Indiana state law, at least with respect to industrial hemp. Although Indiana enacted an industrial hemp pilot research program in 2014 the legislature added a specific hanging paragraph to the section that defines industrial hemp. It states: “the term industrial hemp does not include industrial hemp commodities or products.” This statutory language is confusing since raw hemp is, by any reasonable definition, a commodity. However, it seems to eliminate CBD products in the state, at least through the industrial hemp exception.

The primary problem with the Opinion is its take on Federal law. Hill goes out of his way to assert that CBD is illegal at the Federal level, stating that his approach “delivers us squarely to the conclusion that cannabidiol is illegal under Federal law”. Hill actually hits on the fundamental concept of CBD legality- that it is legal or not based on its source- when he states, “The issue is not whether cannabidiol, standing alone, creates a psychotropic effect in the user. The issue for purposes of the [Controlled Substances Act “CSA”] classification comes down to whether the substance is derived from the genus Cannabis and parts of the plant that are within the CSA definition of marijuana.” Yet, despite appearing to grasp the concept, he goes on to miss, and totally misconstrue, the three instances when CBD can be derived from plants, or plant parts, that do not fall under the Federal definition of marijuana: (1) when it is sourced from industrial hemp lawfully cultivated pursuant to a state’s pilot program under the 2014 Farm Act, (2) when it is sourced from non-psychoactive hemp lawfully cultivated abroad, and (3) when it is sourced from the mature stalk of the cannabis plant. For those interested in a legal analysis of these exceptions, I analyzed Hill’s opinion and discussed them in depth in this blog post.

Hill’s opinion is flawed, at least with respect to Federal law. For the time being, though, it appears that anyone possessing or selling CBD in Indiana risks prosecution. This is unfortunate and, ultimately, unjust.

The Cannabis Law Report is an international report of cannabis related legal matters. Rod is featured as a weekly columnist in Cannabis Law Report. You can find this article on the Cannabis Law Report blog by clicking here.

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