Medical Marijuana

Dispensary Owners File Retail Marijuana Voter Initiative 2.0

A group of Medical Marijuana Dispensary operators refiled a new proposed retail marijuana voter initiative this week. The revised language is largely the same as the language they submitted the first time around- but there are a few changes.

The first version said that the ADHS (who would regulate the program if it passes) sets standards for edible potency by=ut that they can't set standards lower than 10mg of THC.  The revised version makes it clear that they can't set standards above 10mg (a much better decision).  The new version also allows for an additional 26 retail marijuana store licenses (the former language would have basically limited licenses to the existing medical dispensaries. The new version also increases the criminal record expungement limit to possession of 2.5 ounces (in the first version it was 1 ounce.

Here's an old blog post with my initial thoughts about the Initiative.

We'll continue to review the language and evaluate whether basic public health principles related to our Retail Marijuana Resolution before taking any position.

_____________________________________________


U.S. Surgeon General’s Advisory:

Marijuana Use and the Developing Brain

The US Surgeon General (Jerome Adams MD) Issued  a concise advisory this week  that emphasizes the health risks of marijuana use in adolescence and during pregnancy. He released the Advisory in response to recent increases in access to marijuana and in its potency, along with misperceptions of safety of marijuana endanger our most precious resource, our nation’s youth.

Retail Marijuana Voter Initiative In the Works

A group of Medical Marijuana Dispensary operators have completed statutory language for a retail marijuana and marijuana law criminal justice reform voter initiative. The Initiative isn't posted on the Secretary of State's website yet but I was able to get the text of the Initiative. The statutory language is 16 pages long- and there are a lot of provisions...  but here's a review of some of the highlights:

The existing medical-marijuana dispensaries would be allowed to apply to the ADHS for a license to run a retail marijuana storein early 2021. It's possible that there could be a few more stores that open eventually, but not many, because the total number is limited to about 130 total (10% of the number of pharmacies in AZ). Existing medical marijuana dispensaries, with a handful of exceptions, would essentially be the only stores that exist. ADHS would regulate the program.

There would be no criminal penalty for people 21 or over to have 28 grams (one ounce) or less of marijuana or 5 grams of extract. Minor penalties and low grade misdemeanors are outlined for people 21 and over that give or sell marijuana to people under 21.

People under 21 that possess marijuana would be subject to a $100 fine for the 1st offense, a petty offense the 2nd time, and a Class 1 Misdemeanor for the 3rd offense.

People previously convicted of possessing less than 28 grams of marijuana can petition to have their record expunged. The petitions must be granted unless law enforcement provides clear and convincing evidence the person isn't eligible.

Adults 21 and over could grow 6 plants at home with a maximum of 12 per house.

A 16% excise tax would be placed on marijuana products. Money from the excise tax would fund the various state agencies such as ADHS and Department of Public Safety for expenses related to the act. Other entities that will get excise tax funds are the community colleges (31%); police, fire and sheriff's departments (31%) and a highway fund (30%). There's also a one-time distribution ($10M) the ADHS from the existing medical marijuana fund for public health stuff.

Employers can have drug-free workplace policies and can restrict marijuana use by staff.

Driving while impaired (to the slightest degree) by marijuana would still be illegal.

The folks running the campaign still need almost 238,000 valid signatures by July 2, 2020 to get on the ballot- no easy feat given the recent new requirements passed by the Legislature and signed by the Governor which make getting things on the ballot harder.

We'll continue to review the language and evaluate whether basic public health principles related to our Retail Marijuana Resolution before taking any position.

Legislative Session Wrap Up

Another legislative session is in the books.  All in all - a solid legislative session with some pretty significant public health policy gains.  The main areas where progress was made were in access to care, maternal and child health, assurance and licensure and injury prevention. 

There were several bills that didn't progress which would have been a public health benefit and several really good ideas which never even got a hearing- so there were missed opportunities- but overall a solid B+ session I'd say.

We had lots of help with our advocacy efforts this year. Annissa Biggane and Timothy Giblin worked hard each and every week tracking bills, doing triage, ferreting out schedules, and writing risk/benefit analyses.

Eddie Sissions carried a lot of water as usual. She has great insight and a keen ability to figure out the nuances of session and figuring out "how the water flows". Also a big help were our cadre of folks that called in to our bi weekly calls and strategy sessions.

The real key to our advocacy success is you - our membership.  The relationships you make with our elected officials and your focused advocacy efforts are super important to our success at influencing public policy.   Thank you all and well done this year!

I put together a Powerpoint summary of the 2019 legislative session to help y'all digest what happened this year.  I've got links on the pages that'll drive you to the actual bills. Take a look.  BTW- if you open the link with an Apple product like an iPad- the PowerPoint will look weird and unprofessional- so open it on a laptop and in PowerPoint.

State Supreme Court Says Edibles are Protected by the AZ Medical Marijuana Act

The Arizona Supreme Court put to rest the question whether edibles, extracts and resins are covered in the Arizona Medical Marijuana Act and whether patients are protected from criminal charges for possessing them.  The court was unambiguously clear this week that edibles are indeed covered in the Act.

The Ruling came in the form of the final decision in the State v. Jones case which was released on Tuesday.

Here's the case in a nutshell. Back in 2013 a medical marijuana patient (who had a valid ADHS Medical Marijuana Card) was arrested for possession of a small amount of hashing (a preparation of marijuana) in Yavapai County.  Even though he was a Qualified MM Patient, he was convicted by a jury of a class 6 felony and spent 2.5 years in jail. 

Mr. Jones appealed his conviction in Superior Court to the Court of Appeals which upheld his conviction. He appealed to the state supreme court who heard the case about 6 weeks ago. 

The Arizona Medical Marijuana Act provides qualified patients and dispensaries a number of legal protections under the voter approved  Act.  The Act's definition of “Marijuana” in A.R.S. § 36-2801(8) differs from the Arizona Criminal Code’s definition of “Marijuana” in A.R.S. § 13-3401(19). In addition, the Arizona Medical Marijuana Act makes a distinction between “Marijuana” and “Usable Marijuana” A.R.S. § 36-2801(8) and (15).  The basics of the case consists of a profound difference of opinion between the prosecutor, who believes that edibles are not included in the definition of Marijuana in AMMA, and the defense, who makes the common sense argument that edibles are included.

Mr. Jones’ appeal was successful and Qualified Patients can now be assured that as long as they have the allowable amount of marijuana in their possession they are protected from prosecution. That means they can have up to 2.5 ounces of dried marijuana flower or, as the court said this week, "... mixtures or preparations made from two-and-one-half ounces of dried flowers".

Dispensaries can now be assured that their business models that rely on the production and sale of edibles and extracts are protected as well.

Case closed.

FYI- Kind Meds put together a page of the most frequently asked questions about medical marijuana at this site: : https://kindmedsaz.com/education/faqs/

Arizona Supreme Court to Hear Important Medical Marijuana Edibles Case Tuesday

The AZ Supreme Court will be hearing the State v Jones Case (CR-18-0370-PR) on Tuesday, March, 19 2019 at 10 am at the ASU College of Law (111 E Taylor St., Phoenix).  The public can attend the hearing but if you go you better come a little early.

Back in 2013 a medical marijuana patient (who had a valid ADHS Medical Marijuana Card) was arrested for possession of a small amount of hashing (a preparation of marijuana) in Yavapai County.   Even though he had a valid card, he was convicted by a jury of a class 6 felony and spent nearly a year in jail. 

Mr. Jones appealed his conviction (State v. Jones).  Over the Summer, the AZ Court of Appeals in the case upheld the conviction, maintaining that the hashish that he possessed did not meet the definition of mixtures or preparations of marijuana as defined in the Arizona Medical Marijuana Act.  The hearing on Tuesday is the oral arguments in the appeal to the Arizona Supreme Court (the Court agreed to hear the case a few weeks ago).

The Arizona Medical Marijuana Act provides qualified patients and dispensaries a number of legal protections under the voter approved  Act.  The Arizona Medical Marijuana Act definition of “Marijuana” in A.R.S. § 36-2801(8) differs from the Arizona Criminal Code’s definition of “Marijuana” in A.R.S. § 13-3401(19). In addition, the Arizona Medical Marijuana Act makes a distinction between “Marijuana” and “Usable Marijuana” A.R.S. § 36-2801(8) and (15). The basics of the case consists of a profound difference of opinion between the prosecutor, who believes that edibles are not included in the definition of Marijuana in AMMA, and the defense, who makes the common sense argument that edibles are included.

If Mr. Jones’ appeal is successful, Arizona’s medical marijuana program will stand as is.  If it is unsuccessful, it’s reasonable to expect ADHS to completely overhaul their medical marijuana regulations and to impose a completely new regulatory scheme that would exclude extracts, resins, and edibles. Dispensaries and patients would no longer have access to these mixtures and preparations of the Cannabis plant, and dispensaries would be required to discard the instruments and equipment needed under the current regulatory scheme and overhaul their business models to one that focuses exclusively on marijuana flowers.

I filed a Declaration in the case on behalf of Mr. Jones (CR-18-0370-PR).  My Brief basically argues that hashish and other mixtures or preparations of marijuana are indeed covered under the voter approved statutory language and the regulations that we developed at the ADHS while I was Director.  I filed the Amicus as the former ADHS Director, not in my capacity as the Executive Director of AzPHA. 

Public Health Ballot Measures Approved in Other States

Here’s a summary of what voters approved in other states that link to public health policy.  There are a few surprises in here- at least things that I found surprising.

Idaho, Nebraska, and Utah voted to expand their Medicaid programs (up to 138% of the federal poverty level).  Idaho’s Proposition 2 was approved by 61% of voters and Nebraska’s passed with 53% approval (called Initiative 427 to expand Medicaid). Interestingly, neither of those states established a funding mechanism.  

Utah’s Proposition 3 was approved by 54% of voters and funds the expansion with a 0.15% increase to the state’s sales tax. There are now 14 states  left that haven’t expanded Medicaid.  With gubernatorial party changes in Wisconsin & Kansas perhaps those states may be next.

Proposals related to marijuana were on the ballot in five states. Utah voters approved a medical marijuana initiative (Proposition 2) by a 53-47 percent margin. Interestingly, it will be a strictly “edibles” based program (prohibits the medical marijuana). 

Missouri voters approved Amendment 2 (with 66% of the vote) that gives the Missouri Department of Health & Senior Services oversight of the state’s new medical marijuana program. 

Michigan approved a measure to allowing adults to use marijuana for non-medical purposes and a retail sale program.  Proposal 18-1 directs Michigan’s Department of Licensing and Regulatory Affairs to oversee the commercial production and retail sale of marijuana. 

Can Medical Marijuana Card Fees Pay for Drug Treatment in AZ?

This week AZ Attorney General Brnovich wrote an Opinion stating that state lawmakers (or presumably the ADHS) can use qualified medical marijuana patient card fees to operate programs to help get people off of other drugs. The Arizona Medical Marijuana Fund (administered by the ADHS) contains more than $44M right now (the fund consists of fees paid by patients for cards, other card fees like dispensary agent cards, and dispensary application fees). 

Here’s a simple Q & A from this week's Opinion:

Q. Could the Legislature, through the budget process, direct the ADHS Director to appropriate some of the Fund monies to help people addicted to drugs?

A. Yes.  The Legislature may direct the ADHS Director to spend Fund monies for programs to help people addicted to drugs if: (1) the appropriation is passed with a three-fourths vote of each legislative chamber; (2) the appropriation does not deplete the Fund and leave insufficient revenues to cover the immediate and future costs of the initiative; and (3) the appropriation furthers the purpose of the AMMA, i.e., it relates, in some way, to medical marijuana.

The AG Opinion states that:

“The Legislature may direct the ADHS Director to expend monies from the Fund for programs to help people addicted to drugs if: 1) the appropriation is passed with a three-fourths vote of each house; 2) the appropriation does not deplete the Fund and leave insufficient revenues to cover the immediate and future costs of the initiative; and 3) the appropriation furthers the purpose of the AMMA.  

To that end, an appropriation for activities related to distinguishing between medical and nonmedical uses of marijuana, protecting patients and providers from criminal prosecution, or carrying out, implementing, or administering the AMMA would meet this criterion.  If these requirements are met, it is not necessary to submit an appropriation request to Arizona’s voters.

Cannabis v. Marijuana

 

Are Marijuana and Cannabis the same thing when it comes to Arizona Law?  The short answer is maybe not- and the distinction may be an important one for Qualified Medical Marijuana Patients in AZ.

The Arizona Medical Marijuana Act provides qualified patients and dispensaries a number of legal protections under the voter approved  Act.  Interestingly, the Arizona Medical Marijuana Act definition of “Marijuana” in A.R.S. § 36-2801(8) differs from the Arizona Criminal Code’s definition of “Marijuana” in A.R.S. § 13-3401(19). In addition, the Arizona Medical Marijuana Act makes a distinction between “Marijuana” and “Usable Marijuana” A.R.S. § 36-2801(8) and (15).

The definition of “Marijuana” in the Arizona Medical Marijuana Act is: “… all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.”  The definition of “Usable Marijuana” is “…  the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.”  The “allowable amount of marijuana” for a qualifying patient and a designated caregiver includes “two-and-one half ounces of usable marijuana.”  A.R.S. § 36-2801(1)

The definition of “Marijuana” in the Criminal Code is “… all parts of any plant of the genus cannabisfrom which the resin has not been extracted, whether growing or not, and the seeds of such plant.”   “Cannabis” is defined as: “… the following substances under whatever names they may be designated: (a) The resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin.  Cannabis does not include oil or cake made from the seeds of such plant, any fiber, compound, manufacture, salt, derivative, mixture or preparation of the mature stalks of such plant except the resin extracted from the stalks or any fiber, oil or cake or the sterilized seed of such plant which is incapable of germination; and (b) Every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.” A.R.S. § 13-3401(4) and (20)(w)

This distinction is an important one for medical marijuana patients and dispensaries.  This week the AZ Court of Appeals in State v. Jones held that a medical marijuana cardholder was in possession of “hashish”, which he received for free when an employee at a marijuana dispensary in Phoenix had given it to him (the Act specifically allows for gifts of this size between patients). The case involves a transaction between two individuals and doesn't address a transaction between a dispensary and a patient.

The court held that hashish is a resin extracted from the marijuana plant and therefore is Cannabis as defined in the criminal code. The case begs for an appeal.  It doesn't mention concentrates or vape cartridges, and it states that the Arizona Medical Marijuana Act protects patients in possession of allowable amounts of mixtures or preparations of medical marijuana... but it does call into question what protections patients have for what substances as well as what kinds of products are allowable for sale at dispensaries. 

I expect to see the Arizona Supreme Court quickly take up the case (and soon), as the ruling certainly needs to be resolved quickly- and only the Arizona Supreme Court is in the position to make the final call.

It’s too bad that a patient had to spend a year in jail for this issue to be resolved.