A recent Arizona court of appeals decision has sent the state’s medical marijuana market into a frenzied state. In 2010, Arizona enacted the Arizona Medical Marijuana Act (“AMMA”), which grants licensed dispensaries and registered qualified immunity from criminal prosecution for selling or possessing marijuana. Despite this, in March 2013, registered patient Rodney Jones was arrested for possessing .05 ounce of cannabis oil. Jones moved to have the charges dismissed, arguing that he was immune from prosecution under the AMMA by way of registering as a medical patient. The trial court denied the motion and Jones was convicted for possession of a narcotic drug. Jones appealed to the Arizona Court of Appeals, Division 1 (the “Court”).
In State v. Jones (“Jones“), the Court upheld Jones’ conviction by ruling that the AMMA did not extend protections to hashish. The AMMA protects registered patients from arrest, prosecution, or penalty so long as the patient does not possess more than the allowable amount (2.5 oz.) of “useable marijuana.” “Useable marijuana” is defined as “the dried flowers of the marijuana plant, and any mixture or preparations thereof, but does not include the seeds, stalks and roots of the plant.” According to the Court, the language of the AMMA did not provide immunity for the possession of “hashish” which was defined decades before the AMMA was enacted by the Arizona Supreme Court in State v. Bollander, 110 Ariz. 84, 87, 515 P. 2d 329 (1973). Bollander defined hashish as “the resin extracted from the marijuana plant.” The AMMA did not mention “hashish” or reference oil extracted from marijuana, which the court interpreted to mean that the AMMA did not provide protection for hashish.
One judge dissented claiming that the Court read the definition of “marijuana” too narrowly and that the AMMA was intended to encompass hashish and other oil products. The dissent pointed to regulations from the Arizona Department of Health Services (“ADHS”), the body that oversees Arizona’s medical marijuana program, that support the conclusion that the AMMA does encompass cannabis oils. For one, an applicant for a dispensary must provide its bylaws to ADHS and those bylaws must indicate whether the dispensary intends to “prepare, sell, or dispense marijuana-infused non-edible products.” Additionally, ADHS’s dispensary handbook states that non-edible products include “any non-edible items, such as concentrates, sold that contain medical marijuana” and must be labeled with the amount of marijuana they contain.
Despite the dissent and ADHS regulations, as it currently stands, Jones is now valid law. Still, news reports indicate that some dispensaries will continue to sell cannabis oils. ADHS has not yet provided guidance on the matter. We are thinking the department definitely should, and fast.
Given the holding in Jones, distributing marijuana vape or oil products in Arizona comes with significant risk. Jones has put Arizona in a state of uncertainty, which could be resolved if the case is reviewed by the Arizona Supreme Court or it could be “fixed” by legislative action by Arizona’s state lawmakers. We’ll be watching for any updates and if you are a patient or dispensary owner, you should do the same.
*Disclaimer: Our law firm is comprised of cannabis business lawyers in Washington, Oregon and California, with offices in Seattle, Portland, San Francisco and Los Angeles. We have clients participating in the Arizona marijuana market, but we refer those clients to local counsel. We also monitor industry developments nationwide and are publishing the Jones decision as a conversation piece and public service announcement.