ARIZONA — A June 26 ruling by an Arizona Court of Appeals judge on the Arizona Medical Marijuana Act (AMMA) is affecting local patients and vendors of medical marijuana, and causing confusion.
An employee at Green Hills Patient Center in Show Low, Michael Lopez, and Chris Piehn, Manager of Kompo Care in Taylor, said the ruling has upset a lot of people in the area who have AMMA cards.
Lopez said he has had people crying in the lobby worrying that they will no longer be able to get their medication of choice. Parents too, Lopez said, are worried about getting marijuana-based tinctures to ease symptoms of various illnesses like seizures that their children suffer.
“I got into this business to help people who have cancer,” Lopez said. “Emotions (among patients) are out of control over this.”
Arizona Court of Appeals Division 1 Judge Jon Thompson ruled that extracts from the marijuana plant do not fall under the AMMA because they are not marijuana-based, but instead are cannabis-based and are therefore illegal. The ruling only allows AMMA card holders to purchase or possess marijuana flower. Marijuana flower is the “bud” of the plant.
Extracts from the marijuana plant that are being used as edibles, waxes, “shatters,” in vape pens and in other variations were ruled illegal in Arizona by Thompson’s decision.
The extracts derived from processing marijuana are typically much higher in Tetrahydrocannabinol (THC) than the flower, including those grown specifically for medical marijuana.
Foods and snacks infused with marijuana — like cookies, brownies, gummy candies and other things known as marijuana edibles, are infused with the concentrated THC extracts.
Under the ruling, CBD oils are however, still legal. They can be used topically or internally and have either no THC or such a low levels that they do not affect the person using them.
Judge Thompson said the AMMA allows cardholders to use marijuana, not cannabis, which he said is what hashish is made from. Additionally, Thompson said cannabis (being separate and different than marijuana in his opinion) is still an illegal controlled narcotic under Arizona law and neither it nor extracts made from it, are protected by the AMMA.
The ruling came about due to an appeal of a 2013 sentence against Arizona resident Rodney Jones, on one count each of possession of cannabis (hashish) and possession of drug paraphernalia (a jar in which the hashish was found).
Jones waived his right to a jury trial and after being given two and a half years prison time by a judge (minus 366 days served) immediately appealed the term. Jones is currently serving his sentence in the Eyman unit of the state department of corrections.
At the time he was arrested, Jones was a registered holder of a Arizona medical marijuana card that allows possession of up to 2.5 ounces of marijuana.
Judge Kenton D. Jones, who heard Rodney Jones’ appeal, dissented from Thompson’s ruling adding that he would also overturn the conviction against Jones.
He said AMMA does protect Jones and allows medical marijuana cardholders the possession and use of hashish, edibles, waxes, vape pen oils and virtually any extract of any part of the marijuana plant.
Judge Jones said the language of the law which allows use of “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant,” provides the use of the flower and related derivatives by AMMA patients.
The basis of the state’s argument is that anything extracted from a marijuana plant does not coincide with the intent of Arizona voters in approving medical marijuana.
The basis of Jones’ case is that the voter-passed AMMA conflicts with the state’s criminal code on hashish, and since the AMMA is more recent, it is the applicable law in this case.
Judge Thompson said the AMMA does not allow extracts from the plant to manufacture other products, such as hashish, vape pen products, edibles containing marijuana, or anything but the dried flower.
“According to our Supreme Court, hashish is the ‘the resin extracted from the marijuana plant,’ criminalized as cannabis, a narcotic drug, and distinct from marijuana,” Thompson said.
Rodney Jones’ attorney Craig Williams argued Arizona medical marijuana law language that states, “any mixture or preparation” of the plant can be used absolves Jones of the charges against him because the law decriminalized cannabis for medical use by making marijuana “in any preparation” legal for AMMA patients.
Judge Thompson said only “marijuana” and not “cannabis,” is allowed under the law.
‘We cannot speculate that the voters, in allowing the limited use of marijuana to ameliorate patients’ suffering and distress, would, if they also intended to similarly immunize the use of hashish, have allowed the same quantity of narcotics as the relatively benign flowers of the marijuana plant,” Thompson said in his written statement. “Prior understanding of the pertinent words strongly indicates that AMMA in no way immunizes the possession or use of hashish. That AMMA immunizes medical use of a mixture or preparation of the marijuana plant does not immunize hashish.”
In his dissenting opinion, Judge Jones said, “The AMMA immunizes the medicinal use of ‘marijuana’ by registered qualifying patients. The specific definition of marijuana, found within the AMMA, clearly encompasses all forms of the marijuana plant, including its resin, and is consistent with the spirit and purpose of the AMMA. These circumstances evidence an intent to include hashish, or cannabis within the scope of substances protected by the AMMA, and we must give effect to that intent. Accordingly, I respectfully dissent.”
The Arizona Department of Health Services is still reviewing the Appeals Court decision to evaluate whether a change in the rules is required. The Arizona Department of Health Services governs medical marijuana dispensaries in the state. Dispensary operators say that unless the AZDHS tells them to operate differently, it will continue to be business as usual.
The situation, Lopez said, it has been anything but easy on patients.
“We as an organization disagree with the ruling as it’s presently written. We have a different perception of the Arizona Medical Marijuana Act. We, like many other companies, growers and/or dispensaries in this state, feel that these medications are already protected and absolutely covered under the AMMA as it’s currently written,” Piehn said.
He said the industry as a whole is working with legal counsel to ensure that their objection and disagreement with the recent ruling is known and heard.
“We are totally governed by the Arizona Department of Health Services and we have been in constant contact with them. At this time, they are not changing any of our policies our procedures. The direction we have gotten is business as usual for now,” Piehn said.
Penh and Lopez are both encouraging patients to be vocal and let their legislators know how they feel.