After Court Ruling, Uncertianty Looms Over Arizona's Medical Marijuana Industry Part 1

Arizona’s medical marijuana patients are on notice. That’s after a court ruled many of them could be breaking the law.

The legal fight centers on whether marijuana extracts — an ingredient in some of the most popular products — are protected by Arizona’s medical marijuana law.

It’s a decision that threatens to upend a multi-million dollar industry and thousands of patients' lives.

Medical Marijuana Patients In Limbo After Court Ruling

Jessica Crozier was running out of options for her daughter when she turned to medical marijuana.

“At that time, the doctor wanted to discuss brain surgery and we were not up for that,” Crozier remembers.


Her daughter, Emma, has suffered from seizures since she was two years old. At first, Crozier was skeptical. She had even voted against Arizona’s legalization of medical marijuana in 2010.

“We had some friends who said you should think about cannabis for seizures. I had not even heard of that,” Crozier said.

Crozier did her own research. Soon, Emma was one of the first pediatric patients in Arizona’s newly minted medical marijuana program.

She went two years without a seizure, and that wasn’t the only change her mother noticed.

“It really helped with her mood, her cognitive functioning,” she said. “We weren’t expecting that.”

Crozier now works in the industry, helping other families navigate the sometimes overwhelming world of medical marijuana. Her daughter, who is 14 years old, is doing well and her seizures only come once every few weeks. After they happen, Crozier puts a few drops of cannabis oil under Emma’s tongue.

It eases her headaches and helps her recover.

“She might not be able to swallow a pill at that point,” Crozier said.

Crozier bought this tincture at a dispensary with a valid medical marijuana card.

But what she’s doing could be illegal in Arizona.

In June, the Arizona Court of Appeals ruled that cannabis extracts don’t count as medical marijuana. It’s a decision that could have enormous consequences for the state’s nearly 180,000 medical marijuana patients.

Crozier wonders what will happen if they disappear.

“How are people supposed to take this medicine if we only have flower in the state? What are they supposed to do with that?”

What Are Extracts?

Cannabis extracts come from the resin stored in tiny, crystalline structures called trichomes, which are most densely clustered on the plant’s flowers. Those store the active ingredients in marijuana, cannabinoids — what gives the plant its pharmaceutical properties.

Using a chemical process like the food industry, the trichomes are extracted from the plant’s flowers to create a concentrated substance that can go into everything from edibles to topical rubs.

“Many people either cannot inhale the dried herb or flower or it’s contraindicated because of a health condition.”
— Dr. Carlos Santo, naturopathic physician

It's estimated about 40 percent of what’s sold in dispensaries contains extracts, although the state doesn’t track this number specifically.

Some extracts contain high concentrations of CBD — the non-psychoactive cannabinoid often used to treat pain or seizures like Emma’s. The Food and Drug Administration recently approved a medicine made from purified CBD for two forms of epilepsy.

Other extracts can deliver strong doses of THC, the psychoactive ingredient that gets people high. The appeals court ruling specifically dealt with that kind of extract, but the logic used by the judges could be applied to any extract.

“Many people either cannot inhale the dried herb or flower or it’s contraindicated because of a health condition,” said Dr. Carlos Santo, a naturopathic physician with a medical marijuana practice in Scottsdale.

He sees patients everyday who need extracts — from a 3-year-old with kidney cancer to a 95-year-old.

It’s ironic, Santo says, that extracts could be excluded. After all, they let patients use marijuana in a much more precise way.

“You need to know how many milligrams of what you are taking, you cannot measure that by smoking a joint,” Santo said.

This is especially true for patients who only want the pain relief that comes from CBD.

He says the court’s decision, if upheld, would be “devastating”

“It’s just the strangest thing,” Santo said. “They are splitting hairs.”

Santo is troubled by the ruling, but he isn’t advising his patients to do anything differently.

Cannabis Clash Coming To The State Supreme Court

The dispute is likely headed to the Arizona Supreme Court.


“Clearly there’s a lot at stake here,” said attorney Robert Mandel who has asked the high court to overturn the case.

“To find that the use, possession and production of these materials have always been criminal will place a lot of patients in a very bad situation,” Mandel said.

The legal fight hinges on whether Arizona’s medical marijuana law covers extracts. Many in the industry have assumed it does, and these products have been regulated and sold in Arizona dispensaries for years.

But the medical marijuana law does not explicitly mention extracts.

Mandel says they clearly fall under the law’s definition of marijuana, which reads “all parts of any plant of the genus cannabis.”

“To think otherwise would be to sort of pretend that you could distinguish between an orange and its juice, which is really rather absurd,” Mandel said.

It’s a distinction, however, that Arizona’s criminal code does make. In fact, state law assigns an even more severe penalty for “resin extracted from any part of the plant” than for marijuana flower. The state’s high court defined this as “hashish” in the early 1970s.

Citing that case, the appeals court found the criminal statute still applies to extracts.

“There is ... no clear and unequivocal language immunizing hashish” in Arizona’s voter approved medical marijuana law, the majority wrote.

It goes on to say “we cannot conclude that Arizona voters intended to do so.”

In other words, the protections for medical marijuana patients fall away and the criminal statute applies to anyone using extracts. That means patients, dispensary owners, manufacturers are all effectively committing a felony.

“It seems implausible that the intent of the electorate was that the only way the medication can be administered to them is by smoking a joint,” Mandel said.

Mandel argues the voter-approved law didn’t ignore the criminal definition of hashish, but carefully redefined marijuana in a much more expansive way.

Many cannabis lawyers and even some lower courts support this interpretation. One of the judges on the appeals court did, too.

In his dissent, he wrote that the definition of medical marijuana “clearly encompasses all forms “of the marijuana plant, including its resin, and is consistent with the spirit and purpose” of Arizona’s Medical Marijuana Act (AMMA).

But for now, the majority opinion takes precedence, leaving patients in an uneasy legal limbo — do they risk arrest by purchasing a product that remains on most store shelves?

So far, that doesn’t seem to be the case in much of Arizona.

Maricopa County’s top prosecutor is not pursuing these cases until the matter is resolved, according to a statement from his office.

The Arizona Attorney General hasn’t offered any public guidance to law enforcement or prosecutors about the matter. It’s unclear if anyone has been arrested and prosecuted based solely on the recent decision.

Attorney Laura Bianchi is taking a similar approach.


Bianchi, a partner at the Rose Law Group, believes the appeals court got it wrong and the ruling will be overturned.

“It’s certainly something to be cautious of, in my opinion, it unfortunately has a much bigger effect on patients,” said Bianchi who represents dispensaries and others in the industry.

“But I won’t play into the dramatics that I really believe the other side wanted to create,” Bianchi said.

Bianchi sees this as one more effort to fluster the medical marijuana industry. She cites a ruling from Maricopa County Superior Court in 2014 that found extracts were protected.

So far, the Arizona Department of Health Services — the agency that actually runs the medical marijuana program — hasn’t told dispensaries to do anything differently.

“And until that changes, I don’t see any reason to change how we operate,” Bianchi said.

But she says patients still have to decide what risk they’re willing to take.

“It find it extremely unsettling that anyone would try to go after the patients especially in a medical community,” Bianchi said.

This isn’t hypothetical.

It’s actually how the case began when a patient named Rodney Jones was caught with a jar of marijuana oil in Yavapai County, a rural swath of northern Arizona.

His attorney is now Robert Mandel — the one appealing the case.

“He was certainly acting, at least in his view, according to the rules,” Mandel says.

It’s a view that ultimately landed Jones in prison.

Original Article by KJZZ

Michelle Knights