Olivia Covington for www.theiindianalawyer.com

In the wake of legislation legalizing the use of the marijuana-derived oil cannabidiol to treat certain cases of epilepsy, Indiana Attorney General Curtis Hill is cautioning Hoosiers that without proper authorization, consumption of the substance remains illegal.

Hill released an official opinion Tuesday advising Indiana residents that unless they are registered on the Indiana State Department of Health Cannabidiol Registry to use the chemical, better known as CBD, to treat adult or juvenile treatment-resistant epilepsy, use of CBD can result in prosecution. House Enrolled Act 1148, passed during the 2017 legislative session, created an affirmative defense for the use of CBD for the narrow purpose of treating those specific cases of epilepsy.

“This issue has drawn public attention this year following law-enforcement actions against Indiana stores marketing and selling ‘CBD oil,’ a substance delivered to consumers in dropper bottles, sprays or mists – all generally to be taken orally,” Hill said in a Tuesday statement. “…There is not doubt, as a matter of legal interpretation, that products or substances marketed generally for human consumption or ingestion, and containing cannabidiol, remain unlawful in Indiana as well as under federal law.”

Hill’s 14-page advisory opinion lists three main reasons why non-medical use of CBD remains unlawful. First, he wrote the chemical cannot be distilled from any portions of the cannabis, or marijuana, plant that are excluded from description of “marijuana.” Thus, because marijuana is a Schedule I controlled substance, and CBD is derived from non-exempt parts of the plant, CBD is also a Schedule I controlled substance.

Second, Hill said cannabidiol contains THC, the compound in marijuana that produces a hallucinogenic state. Like marijuana, THC is a Schedule I controlled substance. Thus, because THC is found in CBD, cannabidiol is considered a Schedule I controlled substance for that reason, as well.

Finally, both state and federal industrial hemp laws carve out exceptions for higher education institutions and state departments of agriculture to grow and cultivate industrial hemp, as defined under the federal 2014 Farm Bill. However, those laws do not permit any other entities or individuals to produce drug products subject to FDA approval and made from cannabis, Hill said.

“Upon careful study and deliberation, it is the opinion of the Indiana Attorney General that the purchase, possession, use and sale of cannabidiol, and substances, food products or edible oils containing cannabidiol are unlawful under both Indiana and federal law,” Hill wrote in his opinion. “HEA 1148, as it was intended by the Indiana General Assembly, established a limited affirmative defense for the express purpose of treating those with treatment resistant epilepsy.”

Hill’s opinion, which is non-binding, comes as Indiana State Excise Police have been confiscating CBD oil from some 60 stores around the state. The opinion reaffirmed the police’s authority to seize the substance if it is in plain view of an officer.

Senate President Pro Tem David Long, R-Fort Wayne, said Tuesday that lawmakers will have to review the opinion before deciding whether to revise the existing law during the upcoming legislative session, which begins Jan. 3.

Meanwhile, senators Jim Tomes, R-Wadesville, and Blake Doriot, R-Goshen, who put forth a CBD treatment bill in the Senate during the last legislative session, said in a joint statement there will be legislation during the upcoming session meant to clarify who can buy and sell the substance. They also defended the use of the oil as a valid method of treating epilepsy.

“There is still a lot of misunderstanding regarding what CBD oil is, where it comes from and what it does,” Tomes and Doriot said. “CBD oil does not create a ‘high,’ but what it can do is help those who suffer from multiple seizures a day.”

The Associated Press contributed to this report.