MM “Declaratory Judgment”

Wednesday, November 13th, 2013

A Complaint was filed against the ADHS and others last week.  It’s called a “Request for Declaratory Judgment and Permanent and Preliminary Injunction”.  It basically asks the Court to declare that: 1) extracts and resins from the marijuana plant are protected in the definition of “Useable Marijuana” under the Arizona Medical Marijuana Act; and 2) dispensaries, patients, caregivers, and agents are from criminal prosecution for violations of the Title 13 (criminal code) “Cannabis” statutes.  Of course, it’s more complicated than that, but that’s the thumbnail sketch of the Complaint.  This relates to one of my previous posts entitled Marijuana v. Cannabis  In a related matter, a Superior Court judge dismissed a complaint this week that argued that the 25 mile provision should be thrown out.

Medical Marijuana Rulemaking Underway

Friday, October 11th, 2013

A few weeks ago a Superior Court judge decided that a portion of our medical marijuana regulations are unreasonable because they lack a formal appeal process for dispensary registration certificate holders who don’t earn their approval to operate within 1 year.  Because of the  ruling, we approved renewal requests for all the current dispensaries (open or not).  The ruling also means we need to modify our rules.

Now that we’ve completed the overhaul of our medical, skilled nursing, assisted living and behavioral health rules (18 Articles in all)- we’ve turned our attention toward amending our medical marijuana rules.  We began that process this week by scoping out modifications to the rules for renewing dispensary certificates.  We’re also planning to make some modifications to the “25-mile rule” (measuring by road rather than “as the crow flies”), eliminating the former “year 2” selection criteria for dispensaries by focusing on vacant CHAAs rather than patient density, and removing the lifetime disqualification for those applicants that receive a dispensary registration certificate but don’t execute.

Once we have an initial “straw-man” draft, we’ll solicit public comment and have oral proceedings just like we did for the original rules in 2011.  We think we’ll be able to work through the process and establish the modified rules by the Fall of 2014.

Medical Marijuana Edibles

Wednesday, September 4th, 2013

Last week I posted a blog that points out that the words “Marijuana” in the Arizona Medical Marijuana Act and “Cannabis” in the Arizona Criminal Code have different definitions…  and that the distinction may be an important one for Qualifying Patients. 

The major difference is that the definition of “Useable Marijuana” in AMMA includes “… dried flowers of the marijuana plant, and any mixture or preparation thereof…” without specifically addressing the “resins” and “extracts” identified in the Criminal Code.

Marijuana v. Cannabis

Friday, August 30th, 2013

Are Marijuana and Cannabis the same thing when it comes to Arizona Law?  The short answer is no- and the distinction may be  an important one for Qualified Patients. 

The Arizona Medical Marijuana Act provides registry identification card holders and dispensaries a number of legal protections for their medical use of Marijuana pursuant to the Act.  Interestingly, the Arizona Medical Marijuana Act definition of “Marijuana” in A.R.S. § 36-2801(8) differs from the Arizona Criminal Code’s (“Criminal Code”) definition of “Marijuana” in A.R.S. § 13-3401(19). In addition, the Arizona Medical Marijuana Act makes a distinction between “Marijuana” and “Usable Marijuana.” A.R.S. § 36-2801(8) and (15)

The definition of “Marijuana” in the Arizona Medical Marijuana Act is “… all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.”  The definition of “Usable Marijuana” is  “…  the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.”  The “allowable amount of marijuana” for a qualifying patient and a designated caregiver includes “two-and-one half ounces of usable marijuana.”  A.R.S. § 36-2801(1)

The definition of “Marijuana” in the Criminal Code is “… all parts of any plant of the genus cannabis, from which the resin has not been extracted, whether growing or not, and the seeds of such plant.”   “Cannabis” (a narcotic drug under the Criminal Code) is defined as: “… the following substances under whatever names they may be designated: (a) The resin extracted from any part of a plant of the genus cannabis, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds or its resin.  Cannabis does not include oil or cake made from the seeds of such plant, any fiber, compound, manufacture, salt, derivative, mixture or preparation of the mature stalks of such plant except the resin extracted from the stalks or any fiber, oil or cake or the sterilized seed of such plant which is incapable of germination; and (b) Every compound, manufacture, salt, derivative, mixture or preparation of such resin or tetrahydrocannabinol.A.R.S. § 13-3401(4) and (20)(w)

An issue the Department has been wrestling with for some time is how the definition of “Marijuana” and “Usable Marijuana” in the Arizona Medical Marijuana Act and the definition of “Cannabis” and “Marijuana” in the Criminal Code fit together.  This confusion, which appears to be shared by dispensaries and registered identification card holders alike, is not easy to clear up and has resulted in the Department receiving numerous questions regarding the interplay between the protections in A.R.S. § 36-2811 and the Criminal Code.  While we can’t provide legal advice as to whether a certain conduct is punishable under the Criminal Code (only an individual’s or entity’s legal counsel can do this), “Cannabis” is defined as the “resin extracted from any part of a plant of the genus cannabis” and “Cannabis” is listed as a narcotic drug according to the Criminal Code in A.R.S. § 13-3401(4) and (20)(w).   

In other words, registered identification card holders and dispensaries may be exposed to criminal prosecution under the Criminal Code for possessing a narcotic drug if the card holder or dispensary possesses resin extracted from any part of a plant of the genus Cannabis or an edible containing resin extracted from any part of a plant of the genus Cannabis.  If you’re concerned that your conduct may expose you to criminal prosecution, you may wish to consult an attorney.  We’ll be providing some specific guidance for dispensaries licensed by the ADHS next week.

 

Dispensary Ruling

Wednesday, July 31st, 2013

The Superior Court judge ruled this morning that our requirement for Registration Certificate holders (dispensaries) to get an approval to operate within one year in order to renew their certificates is unreasonable.  Because of today’s ruling, we’re going to accept renewal requests for all the current dispensaries in the state, whether they’re open or not.  The initial year for dispensaries is over next week.

The ruling also means we’ll need to rewrite our rules – but that’s not a simple process.  We’ll begin the process of adjusting our regulations to be in accordance with today’s ruling, but it will likely take several months to have everything in line.  Today’s ruling will also delay our decision about how to proceed with “year 2” dispensary applications.

Dispensaries in AZ this Summer?

Wednesday, January 25th, 2012
Right now, it looks like a qualified “yes”.  As you know from earlier blog posts a the judge has ruled in a state case that had challenged our dispensary applicant selection criteria.  We’ve been reviewing our options- and decided yesterday not to appeal  the case- which puts us back on track to licensing dispensaries under the Arizona Medical Marijuana Act. Our teams are busy dotting the i’s and crossing the t’s right now on an express rule package that would remove the dispensary selection criteria that was struck down last week (AZ residency, child support, previous bankruptcies etc.) and to set new dates to accept dispensary applications.  Our goal is to accept applications this April.  We’d then have 45 days to review and award dispensary licenses- so we could potentially have awarded up to 125 dispensary licenses by mid-June. If someone is pretty much ready to go at that point, we could see medical marijuana dispensaries operating in July or August. It’s been awhile since we talked about dispensaries and the certificate process.  The place to start your refresher course is by reading our 53 Frequently Asked Questions summary sheet and our dispensary webpage.  In the meantime, there are several things that won’t change and are still outlined in rule.  Folks will need to have a business plan, security information, staff information, medical director and a plan to distribute information to patients, plus a letter from the locality saying the address is in compliance with local zoning rules. So while we’re busy tying up loose ends with the rules and the FAQs, I imagine prospective dispensary owners will be busy too. One of the key provisions we settled on was to use zones to spread the dispensaries throughout the state.  There were a few reasons for this – one to keep them from clustering in urban areas, another was to make sure that qualifying patients in the more rural areas of the state had access to a dispensary.  Since we started issuing cards to qualifying patients and designated caregivers, we’ve been mapping where they live by zone.  That information is available in a monthly report on our website.

Medical Marijuana Dispensary Update

Thursday, January 19th, 2012
  With the recent ruling in Maricopa Superior Court, ADHS is analyzing the best way to responsibly begin accepting applications for medical marijuana dispensaries. Last week, the Governor instructed ADHS to proceed with the dispensary portion of the AMMA. One of the stumbling blocks was the pending Compassion First vs. Arizona case, which challenged some of ADHS’ rules for prospective dispensary owners. Now that the judge has ruled, ADHS is working to determine the next steps to begin accepting dispensary applications.

New Debilitating Medical Condition Applications

Tuesday, January 17th, 2012
The Arizona Medical Marijuana Act (36-2801.01) directs us to accept and review applications to add new debilitating medical conditions that qualify folks to hold patient registration cards.  We outlined the requirements and review procedures in the Rules we adopted (R9-17-106)- which say that we’ll accept applications every January and July.  We’re planning to accept applications during the last week of January (January 23-27th). Here’s the process: Once we receive an application, we’ll notify the requester that the application was received, and we’ll begin our review.  In order for an application to be successful, the submitters will need to provide evidence as outlined in the R9-17-106 Rule, including: 1) evidence that the medical condition impairs the ability of the individual to accomplish activities of daily living; 2) evidence that marijuana provides a therapeutic or palliative benefit for the condition; and 3) whether conventional medical treatments provide a benefit for the medical condition.  Applicants need to include data from peer-reviewed scientific journals to support the application. We plan on partnering with the U of A’s Mel & Enid Zuckerman College of Public Health and Biomedical Campus teams to review the requests. They’ll be providing us with valuable support, including researching the applications and providing us with summary reports and recommendations using students, faculty and their extensive public health and medical expertise. If the information provided by the applicant meets the requirements, we’ll schedule a public hearing to discuss the request and provide a date for the hearing.  If the information provided doesn’t meet the requirements, we’ll notify the requester with reasons and provide for a process for requesting judicial review.  You can see more information about the process in our Fact Sheet on submitting petitions.

Medical Marijuana Dispensary Application Process to Proceed

Friday, January 13th, 2012
Last May (after receiving a threatening letter from the Arizona U.S Attorney’s Office) the Governor suspended the dispensary portion of the Arizona Medical Marijuana Act with a genuine concern that state employees would be federally prosecuted.  Last year, we asked the federal court to provide us with guidance regarding the obvious conflicts between the Arizona law and the federal Controlled Substances Act.  The federal court’s refusal to address the issue on the merits left many unanswered questions regarding these conflicts.  It’s unfortunate that the Federal court and the Arizona U.S Attorney’s Office couldn’t provide clarity for us on this issue.  However, after careful consideration, the Governor has asked us to implement the dispensary portion of the AZ Medical Marijuana Act. Our first step will be to review the rules for accepting dispensary applications.  Our rules had originally stated that we’d accept dispensary applications last June.  Obviously, that’s no longer possible- so we’ll need to set new application dates using the State’s rulemaking process.  We’re working on those rules right now. The process is complicated by the fact that a lawsuit called Compassion v. Arizona is challenging the scope and constitutionality of our medical marijuana rules.  If that lawsuit is withdrawn or settled quickly, we could begin accepting dispensary applications this Summer.

HIV Becomes a Chronic Disease

Thursday, December 1st, 2011
Chronic disease often calls up bad images for people because it means living with the disease for a long time.  But…  there was a time when cancer wasn’t chronic disease because people got sick and died pretty quickly.  The same goes for HIV.  When it was first discovered in the early 80s people quickly transitioned to AIDS and died shortly after diagnosis.  Now science and medicine have advanced so far, that HIV and AIDS are both more like chronic diseases.  They’ve even come close to what could be considered a vaccine – a discovery so important researchers released it before the rest of the study was finished.  The CDC celebrated World HIV day this week by releasing a new issue of Vital Signs. We’re also keeping up with the times and changing how we handle HIV & AIDS.  The folks who work in HIV/AIDS prevention are moving into our Bureau of Tobacco and Chronic Disease.  This makes so much sense – a lot of the messaging is the same.  People need to learn to control the symptoms, reduce the stressors (like tobacco use or high blood pressure), exercise, eat well and get regular health screenings.   We’ll continue with our surveillance efforts in our Bureau of Epidemiology and Disease Control.