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DEA: Feds won’t arrest CBD oil users, neither should Indiana

While state leaders are struggling to figure out CBD law in Indiana, officials at the U.S. Drug Enforcement Administration say federal law on the subject is very clear: CBD oil is not legal. However the DEA thinks use of CBD oil should cause little worry with Hoosier families.

INDIANAPOLIS (WTHR) — When Scott Wampler picked up his 11-month-old son and felt a lump near his abdomen, he immediately suspected something wasn't right.

"I knew as soon as I felt it that it wasn't just a rib," Wampler recalls.

Doctors confirmed it was a tumor, and they diagnosed the mass inside young Zori Wampler as a rare form of liver cancer.

Zori Wampler's parents turned to CBD oil to help treat the pain from his cancer treatments.

It meant Zori would spend his first birthday in an Indianapolis hospital, recovering from surgery to remove the cancer. And over the next several months, the toddler endured multiple rounds of chemotherapy.

"He was in a severe amount of pain. We couldn't even get him to take his medicine," explained Zori's mother, Victoria.

That's when Zori's parents heard about CBD oil, an herbal supplement derived from cannabis plants. Friends told the Wampler family that CBD oil can calm nerves and effectively treat pain. Scott and Victoria decided to give a few drops to their son, hoping it would reduce his pain with far fewer side effects than the pain medicines prescribed by doctors. They did not expect what happened next.

"He just changed instantly," explained Victoria. "He was so calm. He was so relieved. He was just happy. It was magical to see him out of pain."

But what helped the toddler through his cancer treatments is now in legal limbo in Indiana following an Eyewitness News investigation.

State launches CBD Crackdown

CBD oil use is growing in popularity with those looking to treat pain and anxiety. (WTHR Photo)
“There's a lot of confusion about this topic even within state government”

Earlier this year, 13 Investigates exposed a series of CBD raids conducted by state excise police and the Indiana Alcohol and Tobacco Commission. Excise officers confiscated CBD oil products from dozens of stores across Indiana, citing the businesses with violating state law for possessing marijuana.

Marijuana and CBD oil both come from cannabis plants, and that creates a great deal of confusion for law enforcement. While marijuana comes from cannabis plants that have elevated levels of THC (the chemical compound in marijuana that creates a "high" feeling), CBD oil comes a very different variety of cannabis known as industrial hemp. That has little or no THC and causes no high at all.

Immediately following WTHR's report, state officials met at the governor's office to discuss the widespread confusion surrounding CBD oil. That meeting prompted the Alcohol and Tobacco Commission to impose a moratorium on the agency's CBD crackdown, and excise police were ordered to stop confiscating CBD oil products until the attorney general could issue a clarification of state law.

"There's a lot of confusion about this topic even within state government," attorney general spokesman Jeremy Brilliant told 13 Investigates this summer. "Our attorneys are trying to figure out in fact what is legal and what is not."

Months have passed with no clarification from the attorney general and, in the meantime, police departments across the state are interpreting existing law in very different ways.

13 Investigates obtained a copy of an Indiana State Police memo sent in late August. It informed all ISP enforcement staff that possession of CBD oil is not a crime:

"Commercial products manufactured from industrial hemp are lawful to possess and sell in Indiana. A short list of these products may include, but are not limited to, hemp rope, hemp hand lotions, CBD oil, hemp shoes and other clothing articles manufactured from industrial hemp. Keep this information in mind in the event you encounter such products in the course of your duties, and remember these products are lawful to purchase and possess."

Other police departments in Indiana have a different perspective and, as a result, some Hoosiers now find themselves facing criminal charges for using CBD oil. That is a big concern for families like the Wamplers.

"I think the biggest question for the lawmakers is: What are we supposed to do?" said Scott Wampler. "Nobody really seems to have an answer."

Illegal under federal law but …

“Anybody who's in violation always runs that risk of arrest and prosecution”

While state leaders are struggling to figure out CBD law in Indiana, officials at the U.S. Drug Enforcement Administration say federal law on the subject is very clear.

"It's not legal. It's just not," said spokesman Rusty Payne, who met with 13 Investigates at DEA headquarters near Washington, DC.

Payne says cannabis plants are considered a Schedule I controlled substance, and medicinal oils derived from cannabis plants are illegal according to two federal laws: the Controlled Substance Act and the Food, Drug and Cosmetic Act. He said confusion surrounding the Agricultural Act of 2014 (better known as the "Farm Bill") is frequently cited as legal justification by those who want to manufacture, sell or use CBD oil. The DEA believes the Farm Bill permits only CBD research -- not CBD marketing and sales.

"Anybody who's in violation [of the federal laws] always runs that risk of arrest and prosecution," he said.

U.S. Drug Enforcement Administration spokesman Rusty Payne (WTHR Photo)

But during the hour-long discussion with WTHR, Payne said families like the Wamplers have little to worry about.

WTHR: We've heard from so many people who say this stuff really helps them from a medical perspective.

Rusty Payne: There's a lot of anecdotal evidence out there – there's a lot of people out there – telling us the same thing you are: that this stuff has helped their family.

WTHR: What would you tell the mom and dad who are buying this stuff and giving it to their kids because it helps them get through the day?

Payne: Am I speaking as a DEA spokesman or as a father? Because I am a dad. As a father?

WTHR: Yes.

Payne: I'd do the same exact thing — without hesitation. I cannot blame these people for what they're doing. They are not a priority for us … it would not be an appropriate use of federal resources to go after a mother because her child has epileptic seizures and has found something that can help and has helped. Are they breaking the law? Yes, they are. Are we going to break her door down? Absolutely not. And I don't think she'll be charged by any U.S. Attorney.

While that may come as welcome news to the thousands of Hoosiers who use CBD oil, it does not resolve the uncertainty many families are feeling while waiting for clarification from the state.

"I don't know why anyone would be against this," Zori's mother said. "We got to see firsthand what it can do. It's clearly helpful. This isn't causing any harm. It only helps."

A deadly crisis

Officials at the DEA were surprised to learn that state excise officers raided retailers who sell CBD oil and that some Indiana police and prosecutors have been criminally charging Hoosiers who use it. DEA agents could do the same thing if they wanted to, but they are not. Payne says there is a good reason for that.

"We are in the middle of an opioid crisis in this country. That's our biggest priority right now," the agency spokesman explained. "People are not dying from CBD. Some would argue lives are being saved by CBD. Are we going to get in the middle of that? Probably not.1"

Asked what advice he might have for Indiana as state leaders wrestle with how to deal with CBD, Payne hesitated, saying the DEA would not weigh in on a state issue. A few moments later, he changed his mind and offered a poignant message for state officials and police.

"I think what they need to do is the same thing we're doing and that's prioritize what is truly the biggest issue affecting public safety right now. That would be the opioid epidemic," Payne said. "According to the CDC, in 2015 we lost 52,000-plus Americans – 52,000 -- and a good portion of those are from opioids: heroin, fentanyl, prescription drugs. That has to be our priority right now. Not CBD."

This spring, Indiana Governor Eric Holcomb told WTHR the opioid crisis is a priority for Indiana and that all options for attacking the crisis would be considered.

"This has got to be front and center on every governors' mind," he said. "I've just seen case by case by case by case by case by case where these drugs of today are literally hijacking the brains of our fellow citizens."

But many Hoosiers say when it comes to Indiana's war on opioids, Indiana is not utilizing a powerful weapon. They say CBD oil could help fight and even prevent opioid addiction -- if the state were to embrace it rather than fight it.

"Lets me have my life"

Ruby Houpt believes she is a perfect example.

For years, the Indianapolis resident has taken powerful prescription painkillers and more than a dozen other medications to help manage the painful symptoms of fibromyalgia and degenerative bone disease. Those medical conditions make it hard for Houpt to get out of bed, and she says side effects from some of the addictive pills make her feel like a zombie.

"I didn't want to live that way. I don't want to live that way. I shouldn't have to live that way if that's the way I don't want to live," she told WTHR.

That's why Houpt decided to try CBD oil, which she takes through a spray or a vape pen, and she likes the results.

"Lets me function. Lets me be normal. Lets me go walk around my house. Lets me load my dishwasher. Lets me make a meal. Let's me take care of elderly father," she said. "Just lets me have my life."

Houpt is not alone. Countless Hoosiers have told 13 Investigates CBD oil gives them incredible pain relief from a wide variety of medical conditions. And the best part, they say, is that their CBD oil drops, pills, balms and sprays helped them to wean off addictive painkillers.

During WTHR's visit, Houpt dumped out a large bag of pill bottles filled with leftover medications that she no longer needs.

WTHR: After starting CBD oil, you're not taking any of these?

Ruby Houpt: None. None whatsoever. No opioids. No anxiety medications. No sleeping medications.

WTHR: You mean to tell me, CBD oil could replace all of this?

Houpt: All of it. That's all the crap I can give back. I don't want it. The pills, the addiction, it's not what I want. It's a high. I don't want that.

Houpt has been able to discontinue 14 pain killers, anti-depressants, sleeping pills and other addictive drugs because of CBD oil. With countless Hoosiers currently addicted to prescription drugs, she says CBD could make a huge difference, just as it did for her. Houpt plans to keep taking CBD even if the state decides to renew its crackdown.

"I don't care. They can kiss my ass," Houpt said when asked what she'd do if the state declared CBD oil illegal. "I'd have to see a judge and say: 'You know what, your honor, I don't want to be high; I want to be normal. I don't want a buzz; I want relief. And this is my relief right here.'"

Changing federal law

“I think the risk is small and the potential rewards are great”

Ignoring federal regulations, many states have passed their own laws to legalize CBD oil. On a very limited scale, Indiana did the same thing earlier this year when lawmakers passed a bill that creates a CBD registry for a small group of epilepsy patients. (Several studies show CBD oil is effective in reducing seizures.) Once registered with the state, those individuals can legally obtain and use CBD oil in Indiana. It was only after the governor signed that bill into law this spring that excise officers launched their crackdown at stores across the state. It is unclear whether individuals who do not suffer from an untreatable form of epilepsy can now legally use CBD oil in Indiana – something that was occurring without incident prior to passage of the new law.

While clarifying state law would help resolve uncertainty for CBD users in Indiana, some supporters of the controversial pain remedy say what's truly needed is a new federal law to legalize CBD oil in all 50 states.

"Congress could change the law tomorrow, and if they do, that's what we'll follow," said Payne.

Congress is now considering just that, and a current proposal would impact millions of people by dramatically altering the legal landscape for CBD oil.

"I look at how we take such a hard line against using this substance, and I think 'What are we doing as a nation?'" said Rep. H. Morgan Griffith (R – Virginia). "I want to change the law … and I think the risk is small and the potential rewards are great."

The congressman has been moved by stories from constituents who've been greatly helped by cannabis products such as CBD oil. In January, he introduced HR 715, a bill that would remove CBD oil from the Controlled Substances Act. Griffith believes CBD oil should be legal to help thousands of families just like the Wamplers.

"The stuff creates miracles," he said. "[If] my kid needed it, I'd do it, and if I feel that way, then I feel I have an obligation to change the laws here in the halls of Congress."

The legislation has some bi-partisan support, but it's not yet clear if the House will move the bill through committee for a full vote.

1 Even if the DEA did want to arrest and prosecute individuals who sell or use CBD oil, the Appropriations Act of 2017 seems to put a freeze on such activity. The act states that federal funds may not be used to "prohibit the transportation, processing, sale, or use of industrial hemp that is grown or cultivated in accordance with section 7606 of the Agricultural Act of 2014."

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