The state’s top health official warned Friday that medical marijuana soda pop or hard candy may still land you — and the dispensary owner who sold it to you — in jail, even if you have a medical marijuana card. State Health Director Will Humble said the 2010 voter-approved law clearly contemplates those authorized to sell and use marijuana for medical reasons need not smoke it. Food products are legal.
But Humble cautioned the law is crafted to require the food products contain actual pieces of the marijuana plant. He said anything that contains only an extract remains a felony in Arizona.
Humble said he’s not an attorney and cannot define exactly when preparing marijuana for brownies, sodas or lollipops crosses the line. But he said the statute is very clear that only “usable marijuana” is legally protected and not the extracts minus the plant.
What that means, he said, is someone with a medical marijuana card could legally make, sell or possess a tea bag with marijuana. But selling — or even possessing — the brewed tea in a bottle, with no plant material, could be a felony.
Attorney Ryan Hurley, whose clients include dispensary owners, acknowledged Arizona law distinguishes between marijuana as defined in the 2010 law and what he called an “archaic” definition of marijuana extracts that are illegal under the criminal code, and that the Arizona Medical Marijuana Act does not include extracts.
But Hurley said he believes it was always the intent of those who crafted the law to allow food products made from extracts.
That’s also the position of Morgan Fox, spokesman for the Marijuana Policy Project, which crafted the Arizona law. He said the statute allows use of not only marijuana but also any “preparation” of the drug, which he said includes extracts.
“I have no doubt that the state will be challenged if it tries to exclude edible marijuana products from protection,” he said.
Jeffrey Kaufman, who also represents dispensary owners, said the issue may come down to how the THC — the psychoactive ingredient in marijuana — was extracted.
On one hand, he said it’s illegal to make hashish or hash oil, the concentrated resins containing the THC, using a butane extraction process. And that would make any food products made with those items illegal.
But Kaufman said he believes there’s nothing wrong with extracting THC through a freezing and filtering process and then using what’s produced in recipes.
Humble isn’t ready to make that kind of distinction, calling it one of the “gray areas” in the law. But he said state health inspectors will soon be taking a closer look at the recipes of the food products being sold at marijuana dispensaries and advising operators when they think the items are not protected by the law.
The 2010 laws says those with a doctor’s recommendation can get 2½ ounces of “usable marijuana” every two weeks. And the law defines that as being the plant, minus the stems and seeds.
But the criminal code has two definitions.
The first is for “marijuana,” which includes the plant “from which the resin has not been extracted.” But there is a separate definition of “cannabis,” which includes the resin extracted from the plant.
And Humble said the 2010 law did not legalize cannabis.
“What we’re trying to do is to let folks know to stay away from those shades of gray because it could be problematic for them,” Humble said of his warning, which came at least partly in response to dispensaries offering more diversity in their product mix.
“Avoid using extracts in your recipes and stick to what you believe is ‘usable marijuana’ as defined under the Arizona Medical Marijuana Act,” he said. “If you can do that, you’re probably going to be OK.”
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