Retail Marijuana Voter Initiative: My First Impressions

A group of Medical Marijuana Dispensary operators have completed statutory language for a retail marijuana and marijuana law criminal justice reform voter initiative. I’ve been able to go through the Initiative language a couple of times now. The statutory language is 16 pages long- and there are a lot of provisions...  but below are some of my initial impressions from a public health perspective:

Good Things

  • Employers would still be able to 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 governance structure is decent. It's with an executive branch agency- ADHS (the 2016 Initiative created would have created a self-serving commission).

  • I mostly like the criminal justice reform parts for possession of less than an ounce. Possession up to 2.5 oz is a reduced penalty. Possession of more than 2.5 oz (with some exceptions for home cultivation) appear to be left where they are as a Class 6 felony. Currently, possession of very small amounts of marijuana (w/o a MM Card) are a class felony 6. Convictions impair people's ability to earn a living - placing stress on families because of low wages and limiting the ability of folks to support kids and families and pay child support etc. - basically impairing self-sufficiency. AZ is one of a very very few states with possession of small amounts being a felony, this Initiative would fix that.

  • I like the conviction expungement provisions for the same reasons as above- and the expungement process is reasonable and not a free-for-all.

  • The labeling and packaging requirements are reasonable.

  • The testing requirements make sense too.

  • The restrictions on advertising are pretty good.

The Bad Things

  • There are no penalties for persons over 21 that give or buy marijuana for people under 21. This is a major shortcoming. There's no disincentive for older people to buy for people under 21. There are small penalties and low-grade misdemeanors for people under 21 that misrepresent their age to people over 21 for the purpose of buying marijuana - but no penalty for the older person whatsoever.

  • The buy age in the Initiative is 21 years old. Data suggests that the buy age should be 25 years old. Brains continue to develop up to age 24 (25 in males). Data suggest that marijuana is more harmful and is more likely to cause longer term behavioral health problems when people start using before 25 y.o. Here's a new Surgeon General Advisory from this week on the subject.

  • The Initiative would allow the ADHS to regulate potency but prohibits the agency from limiting doses to less than 10mg. 10mg is a good "ceiling" regulation but a bad "floor" regulation. Having said that- dispensaries would still be able to produce edibles that are less than 10mg and sell them - it's just that the ADHS can't regulate below 10mg.

  • The excise tax is a good idea - but the funds don't go toward public health or youth marijuana prevention programs. There's a one-time distribution ($10M) to the ADHS from the existing medical marijuana fund for public health stuff, but nothing after that. There should be some excise tax funds going to prevention campaigns- in particular youth prevention. A lot more of the excise tax should go toward preventing the downside of the policy decision- e.g. preventing kids from using marijuana.

  • Some excise funds should go to the AZ Biomedical Research Commission to study the effects of this policy intervention.

  • The law would let people cultivate up to 6 plants or 12 per household. While there are some requirements for locking the plants away from kids in houses- enforcing that will be next to impossible and diversion to kids would happen for sure with basically no checks in the system.

  • The existing medical-marijuana dispensaries would have a corner on the market in perpetuity. This is anti-competitive and permanent. Current medical marijuana dispensaries will be allowed to apply to the ADHS for a license to run a retail marijuana store in 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.

  • The Initiative appears to tie the hands of local authorities in setting zoning restrictions (although the League of Cities and Towns would be a better expert).

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.

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.