Medical Marijuana

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.