PHOENIX — Using extracts to make medical marijuana sodas, candies and lollipops is legal, a Maricopa County Superior Court judge has decided.
In an extensive ruling, Judge Katherine Cooper rejected the view of state Health Director Will Humble that the 2010 voter-approved law allows patients to smoke or otherwise consume only pieces of the actual plant. Cooper said nothing in the initiative backs that contention.
The ruling, released late Friday, is most immediately a victory for the parents of Zander Welton, a 5-year-old Mesa boy who has a doctor’s permission to use medical marijuana to treat his seizures.
Jacob and Jennifer Welton had been giving him a liquid tincture with marijuana extract until Maricopa County Attorney Bill Montgomery threatened to prosecute them and anyone who supplied the product.
The Weltons said it was difficult to get the boy to swallow things such as applesauce with crushed marijuana leaves, much less determine if he was getting the correct dosage.
But Cooper’s ruling, unless overturned, sets the stage for the state’s 45,000 other medical marijuana patients to be able to obtain other products made not with the plant’s leaves but with extracts.
“It is undisputed that medical marijuana is intended to be used by patients to treat chronic, debilitating and/or painful conditions,” the judge wrote, listing conditions in the 2010 law ranging from cancer and hepatitis to nausea, seizures and severe and chronic pain.
“It makes no sense to interpret the Arizona Medical Marijuana Act as allowing people with these conditions to use medical marijuana but only if they take it in one particular form,” Cooper said. “Such an interpretation reduces, if not eliminates, medical marijuana as a treatment option for those who cannot take it in plant form, or could receive a greater benefit from an alternative form.”
Montgomery had argued the 2010 law allowed the use only of “marijuana.”
It specifically allows those with a doctor’s permission to obtain up to 2ƒ ounces of marijuana every two weeks. And it defines “usable marijuana” as the dried flowers of the plant “and any mixture or preparation thereof.”
He said extracts technically fall under the separate legal definition of “cannabis,” which was not part of what voters approved and therefore remain prohibited.
Pima County prosecutors have taken the same position.
Cooper, however, said that ignores what is in the initiative.
“The court finds no such prohibition in the statute,” she said.
Cooper also pointed out the measure specifically allows the use of marijuana “and any mixture or preparation thereof.”
“These words expand the allowable manipulation of the plant,” Cooper said. “To conclude that patients can only use unmanipulated plant material would render the phrase meaningless.”
Potentially more significant, the judge pointed out the voter-approved statute says marijuana can be prepared “for consumption as food or drink.”
She said extracts not only ensure proper doses but also can make it easier for patients who cannot consume the plant itself.
“The language of the Arizona Medical Marijuana Act and its ballot materials make clear the proponents and voters intended (the law) to provide access to medicine for debilitating medical conditions without fear of criminal prosecution,” Cooper said. And she said the statute “does not limit the form in which that medicine can be administered.”
Montgomery said Saturday he fears that once products start being made of extracts it will become more difficult, if not impossible, to restrict the program for strictly medical purposes.
He said there has been no decision whether to appeal. But he said Cooper may have to clarify whether the 2ƒ-ounce limit applies to the original plant material or what’s left after the extraction process.
At a hearing last month, Emma Andersson, an attorney with the American Civil Liberties Union, said using an extract — as opposed to grinding up the plant into Zander’s food — is more than a question of convenience.
“What Zander is not getting by using only plant material is an accurate dose of his medicine that is consistent every single time and the amount of cannabidiol he is supposed to be getting,” she told the judge. That refers to a non-psychoactive element of marijuana that Zander’s parents say helps control his seizures.
When Montgomery made his initial determination that extracts are illegal, that left the couple trying to feed Zander dried marijuana leaves, which they could still legally obtain, crushing it up into the child’s food. But his father told Capitol Media Services that’s not a viable option.
“It’s a real fibrous material,” he said. “That’s kind of like taking hay and chopping it up into applesauce to him.”
And Zander, being a 5-year-old, figures out quickly what he doesn’t want.
“He starts to filter it through his teeth,” his father said.
His mother said other forms of administration, such as smoking or even creating a tea, are unacceptable, at least in part because heating the plant releases the psychoactive properties of marijuana that would make the child “high.”
“That’s the part that we’re trying to stay away from,” she said.
