Arizona Supreme Court Clears the Haze: Medical Marijuana Includes Extracted Resin

On May 28, 2019, the Arizona Supreme Court issued a ruling in a criminal case, State v. Jones, clarifying the definition of marijuana under the Arizona Medical Marijuana Act (AMMA). The court held that the act’s definition of marijuana not only includes its dried-leaf/flower form, but also extracted cannabis resin.

Factual Background

In 2013, Jones—a registered qualifying patient under the AMMA—was charged with possession of cannabis and drug paraphernalia for possessing a jar containing 0.05 ounces of hashish. The trial court found that possession of hashish—a form of cannabis resin—was not protected conduct under the AMMA because the AMMA only provided a defense for the use of marijuana from which resin has not been extracted. Jones was convicted and sentenced to prison for two-and-one-half years. The court of appeals affirmed his convictions and the Arizona Supreme Court granted review, finding that this was a matter of statewide importance.

The Arizona Supreme Court’s Analysis

The case turned on how marijuana is defined. The court looked solely to the statutory definition of “marijuana” under the AMMA, which defines “marijuana” as “all parts of [the] plant,” and was not persuaded by the state’s argument that the AMMA did not displace the criminal code distinctions between cannabis and marijuana. According to the court, its interpretation of marijuana is consistent with the intent of the voters who envisioned qualified patients consuming marijuana in whatever form best suits them, not limited to smoking it in its dried-leaf/flower form.

The court also disagreed with the state’s argument that the AMMA’s restriction on the allowable amount of marijuana a patient may possess limits marijuana use to only dried flowers. The court reasoned that the AMMA’s weight restriction only limits the amount of marijuana the patient can legally possess, but not the type or form of marijuana one may possess and use. The court explained that qualified patients are allowed to possess two-and-one-half ounces of dried flowers or marijuana products manufactured from two-and-one-half ounces of dried flowers, regardless of weight of the product derived from those flowers.

The court reversed the trial court’s ruling, vacated the court of appeals’ opinion, and vacated Jones’ convictions and sentences.

Key Takeaways

This case validates what is already the norm in the Arizona medical marijuana industry. Marijuana extracts are commonly used and sold in oils, edibles, vape-pen cartridges, concentrates, and infused food and drinks.

The ruling does not disrupt an employer’s rights and obligations concerning marijuana policies in the workplace. Arizona employers may still prohibit employees from using or possessing marijuana (including products made from marijuana extracts) in the workplace and from performing work under the influence of marijuana. Arizona employers must still abide by the AMMA’s anti-discrimination and anti-retaliation provisions, keeping in mind that medical marijuana includes products derived from marijuana extracts.

Rayna H. Jones is a shareholder in the Phoenix office of Ogletree Deakins.

Andrew Soukhome is a law student, currently participating in the summer associate program in the Phoenix office of Ogletree Deakins.