Criminal Law

The Legal Battle Over Marijuana Edibles

It was the November election in 2010.  Proposition 203, legalizing medical marijuana, was on the ballot.  Arizona voters approved the measure by a narrow margin with 50.1% in favor and 49.9% against.  With the success of the proposition, the Arizona Department of Health services began working to set rules and regulations for medical marijuana sales and use. 

Those rules were scheduled to be effective on April 14, 2011, making Arizona the 15th state to legalize some forms of marijuana use.  There was some short-lived opposition, including a lawsuit by former Governor Jan Brewer to block the new law, but it wasn’t long before dispensaries began opening all over the state.  Doctors began recommending marijuana to control pain in cancer patients and relieve anxiety, nausea, and other symptoms.

The 2010 Arizona Medical Marijuana Act allows people with approved medical conditions and a recommendation from a physician to purchase up to 2 ½ ounces of marijuana every two weeks.  The approved conditions run the gamut from AIDS to things like glaucoma, PTSD, and chronic pain issues.  As of early 2017, more than 180,000 Arizona residents qualified for a medical marijuana card.  The patient applies by filling out an online application.  They must also obtain supporting documentation from physicians and caregivers.  Once approved, the patient receives a medical marijuana card that allows them to purchase the allotted amount at a dispensary.

Now, a new legal battle over marijuana has arisen.  It concerns the definition of medical marijuana versus cannabis derivatives.  Edible products made from the cannabis plant are at the heart of the controversy.

The Legal Case – State vs. Rodney Christopher Jones.

The case began in 2013.  Rodney Jones, a qualified medical marijuana user, was arrested in Yavapai County for possessing a jar containing 0.05 ounces of hashish.  The Yavapai County Attorney’s office prosecuted the case.  Jones was found guilty of possessing a narcotic drug and possession of drug paraphernalia.  (They considered the jar to be paraphernalia).  He was sentenced to 2.5 years in prison for the hashish and a concurrent 1-year sentence for the jar.

Jones and his many supporters were outraged.  They take the position that hashish is covered by the Marijuana Act and therefore legal for qualified users.  Jones appealed his conviction.  On June 26, 2018, Division One of the Arizona Court of Appeals handed down its decision upholding the conviction.  A divided Court held that the Arizona Medical Marijuana Act (AMMA) does not include extracts from the cannabis plant.  The majority held extracts are not covered because they are cannabis based and not marijuana based.   The dissenting judge argued that the ruling violated the spirit and intent of the AMMA, which in his view included resins and extracts.  Critics of the decision argue that the cannabis based versus marijuana based argument creates a distinction without a difference.

How are Hashish, Marijuana, and THC Extract Related?

What is the difference between hashish, THC extract, and the marijuana plant?  That question forms the crux of the legal dispute.  All three come from the cannabis sativa plant.  Marijuana (also called weed, pot, and ganja) usually refers to dried portions of the plant, mainly the flower buds.  Hashish is a paste formed from the resin or sap of the plant.  Hashish has more intense psychoactive properties than marijuana.  THC extracts are made by several different methods designed to concentrate the oil of the plant.  THC extracts also have more intense psychoactive properties.

The Court of Appeals Decision does state that CBD oils continue to be legal.  Cannabidiol, commonly called CBD oil, is one of the 104 compounds that can be derived from the marijuana plant.  CBD oils have been found to provide effective pain relief for many chronic pain sufferers.  However, CBD oils do not have any psychoactive effects on the user.

How Do Marijuana Edibles Fit Into the Picture?

While some marijuana edibles may be made from the dried plant, most are not.  Dried plant fibers and buds may work in brownies and cookies, but not much else.  Today’s marijuana edibles include candies like gummies, chocolates and lollipops.  They include alcohol tinctures, cooking oil, butter, and cannabis infused beverages, especially teas.  Most of these edibles are made with hashish oil and THC extracts.  Edibles take longer to work, but the effects are more long-lasting than smoking or inhaling.  Many patients prefer edibles to avoid the effect of marijuana smoke on their lungs and airways. 

In most cases, marijuana edibles do not taste any different than their drug-free counterparts.  That makes it imperative that users keep the edibles away from children. Children suffer more intense and prolonged symptoms from marijuana and cannabis infused edibles than those experienced by adults.  They may lose balance and coordination.  Many find the psychoactive effects terrifying.

Recently, in New Mexico, a nine-year old girl brought her grandfather’s marijuana “gummies” to school.  She thought they were candy. The girl shared the gummies with 3 other children.  The children became ill with dizziness and nausea being the chief symptoms.  This incident highlights the pitfalls of making marijuana edibles look like candy.  In Colorado, where marijuana is legal for both medical and recreational use, the law prohibits any marijuana edible in the shape of an animal, a human or a fruit.  The law is designed to minimize the attraction to children.  Other states have not yet enacted similar protection laws for children.

Is the Court of Appeals Decision Final?

It is probably not.  This ruling has created panic in marijuana patients all over the state.  They are fearful that the most effective products for controlling pain, the nausea of chemotherapy, glaucoma and other ailments will be taken away from them.  The Arizona Department of Health is reviewing the rules for medical marijuana dispensaries to evaluate their compliance with the appellate court decision.

Medical marijuana proponents have mobilized to file amicus briefs for Jones’ appeal to the Arizona Supreme Court.  Because the decision has state wide significance, the Court will likely agree to hear the case.  The battle lines are drawn.  The State Attorney General’s office wants medical marijuana limited to portions of the marijuana plant that can be smoked or eaten.  The medical marijuana industry, patients and some medical practitioners believe the Court of Appeals ruling undercuts the basis and purpose of the Arizona Medical Marijuana Act.  They argue many patients are too ill to smoke marijuana and unable to consume it in plant form.  They contend that extracts, oils and resins made from the plant are better suited as therapies.

What will the Arizona Supreme Court decide?  No one knows.  There are strong legal arguments on both sides.  Stay tuned to see what happens.



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