CBD crackdown continued even after Indiana excise police announced enforcement moratorium

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Evansville Courier and Press (original article Indy Star) on 10/5/2017 by Kaitlin L Lange

Even after excise police said they would no longer confiscate a cannabis extract from Indiana stores, they continued to threaten to punish retailers that carried the product.

At least twice after the state’s Alcohol and Tobacco Commission announced the moratorium on Aug. 12, excise police, the agency’s law enforcement arm, cited stores for potential violations for selling products containing cannabidiol, a nonpsychoactive substance found in marijuana plants.

Two days later, a store in Lake County was given a notice of violation for CBD products the excise police had seized in January, records obtained by IndyStar show.

In September, a Shell gas station on the southside of Indianapolis was issued a warning for its supply of “Kush Cakes” that are “made with CBD.”

When asked for clarification on the state’s policy after those two incidents, agency spokeswoman Heather Lynch issued a one-sentence, saying the warning and violation were “issued in error and have been withdrawn.”

Lynch offered no explanation as to why the errors occurred.

The two incidents came after Lynch said in August the the ATC would no longer confiscate CBD products “unless the products clearly violate Indiana law.” That led many store owners to re-stock their shelves with the product.

The moratorium came after a sudden state-wide crackdown on the product in May that resulted in the seizure of more than 3,000 products from about 60 stores throughout the state.

IndyStar first reported those statewide busts, showing they occurred amid mass confusion over the state’s complicated CBD laws.

In April, Gov. Eric Holcomb signed a bill into law that allows people diagnosed with treatment-resistant epilepsy to possess cannabidiol as part of a new state registry. However, the CBD must contain less than 0.3 percent tetrahydrocannabinol, or THC, the compound in marijuana that produces a high.

The excise police thought the new law made it clear that possession of CBD for other purposes was a crime, but some lawmakers and Indiana State Police, a different state law enforcement branch, have said the substance already was legal under a 2014 law that removed industrial hemp products from the state’s controlled substance statute.

When questions about the legality of the CBD busts surfaced, state officials, including a spokeswoman for the governor, said the busts would stop and the seized products would be held until the “legal analysis pursuant to Indiana law is complete.”

The violation issued to Smoke & Vape in New Chicago resulted from CBD e-liquids seized in January. The products later tested positive for cannabidiol which “is considered a controlled substance,” an officer told the store owner when he gave him the violation in August.

The Shell gas station received a written warning for having a box of “Kush Cakes,” a brownie made with “hemp protein” the excise officer found beneath the store’s register.

“If an Excise Officer were to return after the five days and… the Kush Cakes were still in the store, then the warning would become a violation,” an officer wrote in his incident report.

Lynch said the ATC had informed the two store owners that their citation and warning were withdrawn. Gurwinder Singh, the owner of the Shell gas station, however, said he hasn’t received any notice that the warning was a mistake, and he already returned the CBD product to his wholesaler.

Store owners have largely been left in the dark on the issue, even as some have opted to put CBD products back on their shelves after news of the moratorium broke.

The recent ATC “errors” worry Happy Daze Smoke Shop store owner Jeff Shelton.

“We definitely feel like at any time the rug could e pulled back from under us,” said Shelton said. “Until they come out and give a definitive answer, we’re definitely going to feel on edge and worried they could come in and take the products.”

Even though the citation and violation were just mistakes, the agency could change its stance on the substance once a legal analysis of Indiana law is complete. Attorney General Curtis Hill also is set to issue a formal opinion on the product’s legality.

Brandy Barrett, the mother of a 10-year-old boy who uses CBD to treat his severe epilepsy, sees the gaffe as just the latest in a string of ATC mistakes and confusion over state law.

“Obviously this goes to show there is a real issue going on in the state,” Barrett said.

She said its discouraging and disheartening to learn the ATC is causing more confusion after issuing a clear statement with its moratorium.