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.

 

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.

Is Marijuana Medicine? Information for Doctors

Tuesday, September 20th, 2011
Next month, the U of A College of Medicine Phoenix is going to host a lecture about marijuana and whether it is medicine.  Dr. Sue Sisley, St. Joseph’s Hospital, will be giving the presentation at the Phoenix Theatre on October 11th at 5:30. In an earlier blog, Dr. Laura Nelson, ADHS’s Chief Medical Officer, and I shared what we had compiled about the medical research concerning marijuana.  We talked about how patients will likely ask their primary care doctor or go to their medical home to discuss whether marijuana is an option for them.  And we emphasized how important it is to keep Arizona’s Medical Marijuana Program – Medical. Hopefully, physicians will be able to take advantage of Dr. Sisley’s information in October as she examines “Marijuana – Is It Medicine?”  The presentation is free, but you have to RSVP to Brigitte Jordan at bjordan1@email.arizona.edu or (602) 827-2018.

AZ Physicians Referred to Licensing Boards due to Questionable Medical Marijuana Certifications

Friday, August 19th, 2011
One of the criteria on our official medical marijuana Physician Certification Form includes an attestation by a physician that they’ve reviewed their patient’s profile on the Arizona Board of Pharmacy’s Controlled Substances Prescription Monitoring Program database before signing the certification.  We included this requirement to ensure that physicians are acting in their patient’s best interest- and making sure that they’re using best practices and checking to see whether their patient has been prescribed other controlled substances before signing the marijuana certification.  Another requirement that we included asks physicians to attest that they’ve reviewed the patient’s medical history including examining the last 12 months of the patient’s medical records before signing.  We also think these requirements are important because other states that have medical marijuana programs have found that some physicians are more focused on getting revenue from signing certifications than on their patient’s health. As a routine quality check in our certification system, we’ve been asking the Board of Pharmacy to verify whether or not certifying physicians are actually accessing the system (as they have attested).  We’ve identified 3 MDs and 5 Naturopaths that have been routinely attesting that they’ve checked the Controlled Substances Prescription Monitoring Program when they appear to have not checked that regularly.  Dr. Nelson and I sent letters to their licensing boards recently notifying them that it looks like these 8 physicians may be falsely attesting that they’re checking the Prescription Monitoring Program database.  In each case, they appear to have written more than 100 certifications (some several hundred) that included attestations that cannot be verified by the Board of Pharmacy. Our larger concern is that if these physicians aren’t completing this simple requirement (and making false attestations)- it’s likely that they’re taking other short-cuts that may be jeopardizing their patient’s health- such as not reviewing the patient’s medical history before writing medical marijuana certifications (also required in the series of attestations).  Since these 8 physicians have signed nearly half of the 10,000 medical marijuana medical certifications, we think it’s important that the boards know about this so they can decide if the physician is acting in the patient’s best interest.  The referrals may also have a side effect of discouraging physicians from writing recreational certifications.

New Medical Marijuana Memo from Justice

Monday, July 11th, 2011
The U.S. Department issued new guidance for federal prosecutors last week.  We had been anticipating a new memo from Justice for some time- hoping that it would clarify whether the dispensary portions of the Arizona Medical Marijuana Act are legal under federal law (the Controlled Substances Act).  We were also hoping it would help us figure out how risky it would be for us to issue dispensary applications.  Unfortunately, the new guidance didn’t help much. The guidance makes it clear that folks that facilitate large scale cultivation are at risk for prosecution. People that “facilitate” cultivation are also at risk for prosecution.  But, a key remaining question is what the word “facilitation” means.  Could it mean that issuing state approved licenses for cultivation and dispensing would put us at risk for prosecution?  We’re hoping that the upcoming Declaratory Judgment will answer this question (and others) once and for all.  You can check out the new memo from Justice on our website.