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Some medical marijuana products already being sold may be illegal

cannabis-foodArizona’s medical marijuana law says that as long as a doctor recommends it, anyone can possess and use marijuana.

But, the law, narrowly passed in 2010, doesn’t explicitly say the chemical-containing resin can be extracted from the marijuana. That could mean problems for the patients and dispensaries that are already buying and selling certain products under the belief that those products were authorized.

Arizona Department of Health and Human Services Director Will Humble explained in a recent blog post that a variety of edible and topical products already on the shelves in medical marijuana dispensaries around the state could be interpreted as illegal and result either in criminal prosecution or the revocation of dispensary licenses.

The products in question are prepared by extracting the active chemical “resin” from marijuana flowers, where it can then be added to confectionery items, baked goods, topical creams, sodas or even sold by itself as a “tincture” that can be administered directly into the mouth.

Until now, advocates for the medical marijuana industry have argued that because the Arizona Medical Marijuana Act classifies “dried flowers of the marijuana plant, and any mixture or preparation thereof… prepared for consumption as food or drink” as “usable marijuana,” such resins were permitted, along with the products they’re added to.

But Arizona’s criminal code specifically categorizes such resin as “cannabis,” differentiated from “marijuana.” So while grinding up marijuana and adding it to brownie mix may be covered for medical marijuana users in Arizona, extracting the resin from marijuana and then adding it to brownie mix is something different and still considered to be a criminal activity, without any medical value.

Humble’s statement ended by urging dispensary owners and medical marijuana patients to consult with an attorney if they feel their activity may expose them to criminal prosecution.

Ryan Hurley, a Rose Law Group attorney who represents several medical marijuana dispensaries, said the mismatch between what’s described in the state criminal code and what was included in the state’s medical marijuana law is something he has been aware of and advised his clients to be cautious about, but that the new statement from Humble adds urgency to the situation.

“When their license is on the line,” Hurley said of the Health Department’s intention to consider this issue when renewing dispensary licenses, “it changes the risk calculation.”

In order to fix what Hurley describes as an exploited detail of the state’s medical marijuana law, a state Superior Court would need to weigh in on the issue.

“My advice for clients is that if you intend to manufacture these products, you should get a declaratory judgment,” Hurley said. “A judge could say that the (Arizona Medical Marijuana Act) said any mixture or preparation of the plant is acceptable, including resin extraction.”

Beyond that, options to fix the issue look bleak, Hurley said.

The Legislature could amend the state’s criminal code or the Medical Marijuana Act. But that would take a three-fourths majority and the change could only further the intent of the original law. Hurley said he thinks that’s unlikely, considering that most lawmakers are either reluctantly tolerant of the law or opposed to it.

Or the issue could be put to voters once again, which would take an immense amount of time, money and energy.

Or someone could be arrested and prosecuted under the technical distinction, forcing a judge to make the same kind of clarification that would be requested under a declaratory judgment suit.

If a declaratory judgment lawsuit were initiated, Hurley said it would be best served with a “sympathetic plaintiff,” such as someone who can only take medical marijuana that has been prepared in the way described in the criminal code, along with the dispensary selling the patient that product.

“Only the most sensitive and vulnerable (medical marijuana) patients are affected by this,” Hurley said, noting that some authorized marijuana users with severe neuropathic problems or certain kinds of cancers cannot smoke marijuana, and a resin extract is the only option for them.

Humble explained in a follow-up post that his agency will work to get clearer guidance on the issue for dispensary owners in the coming weeks.

Maricopa County Attorney Bill Montgomery, who has tried to stop certain portions of the state medical marijuana law from being implemented due to the conflict with federal drug laws, called Humble’s caution “sage advice” in an email statement.

He also said he will work with law enforcement agencies to come up with a strategy for “how to best handle conduct that does not fall squarely within the limited provisions of the AMMA.”

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