Arizona Asks: Is Hashish Medical Marijuana?

The Arizona Supreme Court is set to rule on whether cannabis extracts, including those used to make the edible products now sold to patients at licensed dispensaries, are legal under the state’s medical marijuana program.

The question arises in the case of Rodney Jones, a Yavapai County resident who asserts that his 2013 conviction and two-and-a-half-year prison term were in violation of state law. Jones, an African American man who has already served nearly a year on the charge, is an approved patient under terms of the voter-approved 2010 Arizona Medical Marijuana Act — permitted to obtain up to two-and-a-half ounces of cannabis every two weeks. As coverage in the Arizona Capital Times explains, he was arrested at a hotel for possession of a jar containing just 0.05 ounces of hashish that he had bought at a dispensary.

In a divided ruling last year, the state’s Court of Appeals upheld his conviction. The majority found that the 2010 law allows patients to possess only forms of the plant itself (the flower being the relevant part, of course) — not the resin, or anything derived from it. Hashish, or hash, is a cannabis extract made from the resinous trichome glands on cannabis flowers.

But attorney Robert Mandel, in asking the high court to review the conviction, pointed out that the state’s Department of Health Services has for years allowed and regulated the sale of products made from extracts. These include candy, confections and oils that can be administered to children who have been recommended medical marijuana for epilepsy or other ailments.

The high court is expected to weigh in on the matter in the coming weeks.

Ambiguity in Arizona’s Concentrates Law

Will Humble, who was state health director when voters approved the law, has even filed an affidavit with the Supreme Court saying that the rules he drafted, in cooperation with the attorney general’s office, always considered that the medical marijuana statute covered the use of cannabis extracts. And he rejected the contention by the Yavapai County Attorney’s office that hashish is legally distinct from other extracts currently used to make edibles.

In an unusual move, Arizona’s Attorney General Mark Brnovich is not actually trying to persuade the Supreme Court to uphold Jones’ conviction, but instead is calling on the justices to review the question and provide some guidance. Yavapai County Attorney Sheila Polk is asking the Supreme Court not to review the case.

To make it even more complicated, in upholding the conviction, the appellate court’s Judge Jon Thompson actually stated that the law allows patients to possess “all parts” of the cannabis plant, as well as any “mixture or preparation” thereof — except hashish. But Judge Kenton Jones, in a dissent, charged that his colleagues on the appellate bench were slicing it too thin by excluding hashish.

“Different forms or delivery methods of marijuana may be more or less appropriate, depending upon the patient’s age, condition, abilities, and desired dosage,” Jones wrote. “When considered in the context of medicinal use, there is no logical reason to limit how the therapeutic compounds found in marijuana are introduced into the body.”

Is Yavapai County Ignoring Precedent?

The Phoenix weekly New Times ran an exposé in October portraying Yavapai County authorities as exploiting the ambiguity in the law concerning extracts to score busts and convictions. One man, Robert Stapleton of Prescott, was even arrested for possession of CBD oil in 2017. Because he also had a handgun when he was stopped in his car (which would have been perfectly legal if he didn’t also possess “drugs”), he is facing felony charges.

Following a review of 90 court cases, the New Times found that “prosecutors encourage police in the central Arizona county to hold a strict line on cannabis extracts. These tactics have resulted in injustices against cannabis patients and CBD consumers, who otherwise likely would not have been prosecuted.”

Yet, in still another contradiction, in March 2014, a Maricopa County court ruled in favor of Zander Welton, then five years old, finding that his parents and physicians could resume treating his seizure disorder with a cannabis extract.

The ACLU of Arizona’s legal director Dan Pochoda hailed the decision. “The court recognized the clear language and intent of the voters to enable relief for seriously ill people through the use of marijuana plants and their extracts,” he said.

Legislative Remedy Pending

Rep. Tony Rivero, a Republican who represents parts of Yavapai County in the state legislature, is seeking a change state law to clarify the question. His bill, HB 2149, would remove the definition of “cannabis” from the state criminal code, and fold that language into the definition of “marijuana” — as it is referenced in the medical marijuana statute. The state narcotics statute, in contrast, makes reference to “cannabis.”

“[The new] definition conflicts with prior law that defines cannabis as criminal,” Rivero told the Arizona Capitol Times. “The Marijuana Act supersedes the criminal code and I don’t want it to be used as a tool to force patients who are fighting cancer and other diseases to have to smoke marijuana,” as opposed to using extracts or edibles.

The case obviously touches not only on the right of medical marijuana patients to use hashish, extracts and edibles, but also the semantic question of the distinction between “cannabis” and “marijuana.” This question is currently the source of much confusion in state regulations, as well as industry nomenclature around the country.

TELL US, do you think hashish should be considered medical marijuana?