Arizona Supreme Court Finds Medical Marijuana Includes Cannabis Extracts and Resin

By Patrick J. Paul

In a landmark unanimous decision impacting Arizona’s medical marijuana industry, the Arizona Supreme Court on May 28, 2019, vacated two lower court decisions and the attendant criminal convictions and sentences associated with the possession of 0.050 ounces of hashish. It effectively found that the Arizona Medical Marijuana Act’s (AMMA) definition of marijuana in A.R.S. §36-2801(8) includes resin and extracts, clarifying that “all” really does mean “all.” State of Arizona v. Rodney Jones,  245 Ariz. 46 (App. 2018) Opinion

At issue was Rodney Jones’ conviction for possessing a jar containing 1.43 grams or 0.05 ounces of hashish. Jones was a registered patient under the AMMA and maintained that his possession and use of hashish were consistent with the AMMA. The state successfully argued at the trial and appellate levels that the AMMA did not displace the criminal code and that an AMMA defense was only viable for the use of marijuana from which resin had not been extracted. Jones was sentenced to and served 30 months in prison, notwithstanding the subsequent State Supreme Court’s reversal.

In 2010, Arizona voters approved the AMMA, which allows persons who meet certain statutory conditions, including quantitative limitations (2.5 ounces) to use medical marijuana. The AMMA defines marijuana to mean “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.”  A.R.S. §36-2801(8). Further, “usable marijuana” is defined to mean “the dried flowers of the marijuana plants, and any mixture or preparation thereof, [not including] the seeds, stocks and roots of the plant [nor] the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.” A.R.S. §36-2801(15).

The Court observed that the AMMA in §36-2801(9) allowed for the “manufacture” of marijuana to treat or alleviate debilitating medical conditions. Although the AMMA does not define manufacture, the Court determined (using the dictionary) that manufacture can mean “to make into a product suitable for use” and found the state’s arguments to the contrary to be unpersuasive.

In overturning the decisions below, the Court observed that a plain reading of the AMMA required the protection of medical marijuana use, including resin, provided the registered qualifying patient did not otherwise exceed the allowable amount (2.5 ounces). The Court specifically found it “implausible that voters intended to allow patients” otherwise qualified to only smoke marijuana thereby clarifying that extracts, resin and concentrates in a variety of forms from brownie to gummy to sodas to vape cartridges are permissive uses if otherwise within the “allowable amount” parameters.

Until this discussion, uncertainty was the order of the day for growers, cultivators, dispensaries and users with respect to the legality of cannabis extracts and resins. Legislative clarification may follow. In fact, language in a possible 2020 ballot measure already more broadly defines cannabis to specifically include resin, extracts and every compound, salt, derivative, mixture and preparation of the plants of the genus cannabis. 2020 Initiative

Of course, while this decision from the highest court in the state eradicates any doubt as to whether resin and extracts are considered cannabis under state law, overarching federal concerns remain. The federal Controlled Substances Act continues to criminalize the manufacture, distribution, dispensation, or possession of marijuana, even where state law authorizes its use, and, to date 33 states have legalized some form of marijuana. The current lack of vigorous federal enforcement does not change the law itself or negate the possibility that the enforcement position may change.