What’s In a Name?
Would cannabis, by any other name, smell as sweet? That’s what some are asking after a surprise decision by an Arizona Superior Court last month which made cannabis extracts and concentrates illegal for all Arizonans, regardless of their medical card status. The decision hinges upon the archaic 1978 Arizona Controlled Substances Act, which essentially defines “marijuana” as meaning cannabis flower, and “cannabis” as meaning all extracts thereof.
This confused and outdated legal language, four decades old this year, was not updated or clarified by the 2010 Arizona Medical Marijuana Act. So, according to the courts, cannabis extracts have never been legal in Arizona, despite MMJ dispensaries selling them since 2014.
Now, it’s up to the Arizona Supreme Court to make a ruling for or against the Yavapai County decision which will decide the ultimate fate of extracts in Arizona… and nobody knows if or when this will happen. In fact, it’s possible that the Supreme Court will never even see the case, given their ability to defer judgement indefinitely, meaning the current ban on extracts would stand unchallenged.
The Appellate Court decision was handed down on June 26th and, of course, the news sent panic throughout the industry. As Attorney Sonia Martinez put it, speaking to the June 27th meeting of MITA (the Marijuana Industry Trade Association,) she doesn’t know how the state is going to react and how the appeals process will work. She did reveal, however, that she heard through the grapevine that there are some state officials who are very excited about this decision, and who may start to plan visits to dispensaries with law enforcement.
Martinez does criminal defense and over the past couple of years she’s had approximately half a dozen felony narcotic possession cases involving extracts, and she has been successful in working the cases so that her clients have been found not guilty. However, “to be clear,” she said to the meeting of dispensary owners and industry professionals, “the law of the land right now is that if any of you patients have concentrates on you, you have contact with police, and police find the concentrates on you – to be clear – unless the cop is cool with you – you will be arrested and charged with felony possession of a narcotic.”
As far as the dispensary “visits” go, she clarified that she doesn’t know if, when, or where they will happen, but that they are absolutely possible. And whether she meant police raids or not wasn’t made apparent, but some businesses are preparing for the worst.
Some larger operations, however, refused to stop providing concentrates to patients in need and also give up the huge portion of their profits which concentrates make up, right from the get-go. Producer Baked Bros had this to say,
Thankfully, the Arizona Department of Health Services, our regulatory body which governs the Arizona Medical Marijuana Act, has received no indication from the courts to change the current medical marijuana program. With this in mind, we intend to continue providing high-quality medical marijuana products to Arizona patients.
Unfortunately, the recent decision only highlights a fundamental misunderstanding among marijuana prohibitionists about extracts. Education is crucial for understanding, and we will do our part to undo the damage done with the help of organizations like the Arizona Dispensaries Association and others.
Dosing is the future of medical marijuana, and we at Baked Bros will continue to live our motto of “Dedication to Medication™.”
Well said. This statement seems to sum up the overall attitude and response from the industry. Harvest of Arizona Dispensaries and a few others also made public statements declaring that extracts will remain on their shelves until the final decision by the Supreme Court is made, or until the Department of Health Services updates their rules to reflect the change in the law.
Harvest also stated on the homepage of its website that it “disagrees with this ruling, as most have interpreted it, and will continue to carry, manufacture and sell the concentrated medicines that our qualified patients demand.” citing that the ruling disallows sale of “any concentrate where the plant’s resins have been completely separated from the plant material,” and that such a thing does not actually exist, so sales will go on per usual.
It’s easy to see why businesses are reluctant to stop producing and selling extracts. In addition to helping sick patients in need of strong medicine, concentrates provide an enormous portion of dispensaries’ income. According to Mikel Weisser, Arizona state director for NORML, cannabis extracts make up approximately 40% of MMJ sales in the state. This includes all forms of concentrates, from RSO to THC Distillate and, of course, a large percentage of edibles which are manufactured using cannabis extracts.
Technically, even some forms of CBD are on the chopping block, as long as they were derived from cannabis flower (or even nonUSA-grown hemp, oddly enough, which has strict US customs requirements.)
Cannabis concentrates vary so much in so many ways that a blanket prohibition seems backwards and uninformed. The outlawing of RSO, for example, (a full-spectrum cannabis extract used to treat cancer and other life-threatening conditions) has some patients outraged. There is even something of a class action lawsuit being assembled by Arizona families to appeal the decision and ensure the availability of concentrates for their loved ones in need.
In 2014, sales of concentrates began at dispensaries and it seemed like the Arizona cannabis market was only getting stronger, so what happened? Let’s back up and review the history up to this point.
A Tale of Two Counties
This all started in 2013 with the arrest of Rodney Jones in the Prescott area, part of Yavapai County. Rodney was found to be in possession of approximately 1.5 grams of hash, which he assumed his medical card allowed him to have. To his surprise, he was arrested and sentenced to two and a half years in prison. Yes, you read that right… prison.
I wasn’t able to find if Mr. Jones had a prior criminal record or not, but the details surrounding the arrest could explain the severity of his sentence or answer the question of why the possession of hash was called into question in the first place. According to The Daily Courier1, Jones had not only his small amount of hash, but was also transporting live plants in a car that smelled of fresh marijuana smoke, driven by a minor who admitted to having smoked with Jones the night before. Even if all this is true, he was only charged with possession of hash and paraphernalia. The guilty verdict is based on his possession of hash, not how he was arrested.
A two and a half year sentence seems exorbitant to everyone I’ve spoken to about the case so far. After all, the man had his medical card, which he thought gave him the right to possess “marijuana, or any mixture or preparation thereof”, as the AMMA states. Nevertheless, Jones served his time while his attorneys continued to work on an appeal. Eventually, he was released on June 26th, 2017, exactly one year before the courts decided to ban extracts.
By the way, a similar incident occurred in Navajo County earlier in 2013, where an MMJ patient was charged with possession of extracts, but he was exculpated once an expert witness educated the judge on what concentrates really are.
The Yavapai case involving Rodney Jones, unfortunately, was not noticed in time for other lawyers to affect the outcome, and by the time it made it past the court of appeals, extracts were deemed illegal statewide.
“We’re business as usual at MuV Dispensary, we are still carrying all of the same products and have not received any indication from AZDHS to remove concentrated cannabis products as of late.”
Now, we wait for the Supreme Court to rule on the matter. Stay focused and ready to participate in any political activism events that will certainly be coming following this absurd decision. As some have predicted, this case will most likely be overturned once it reaches the highest court in the land, assuming it actually gets there. Personally, my gut tells me there’s no chance that concentrates will remain illegal once everyone involved in the courts is educated on the matter, but perhaps this is just wishful thinking on my part… but I’m an eternal optimist. Right now, it is a matter of timing and patience.
In the meantime, I cannot directly advocate breaking the law, however unjust it is. But if you do choose to continue using extracts, then you must be SMART and take every reasonable precaution to avoid their detection by law enforcement. This means don’t ride around with your vape pen sitting shotgun, don’t display dab paraphernalia, don’t post incriminating evidence on social media, etc.
I’m a spiritual person who believes that God is on our side on this one. Cannabis and the medicine derived from it is a gift from nature for us to use, and concentrates are an integral part of that larger picture.