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.
Posts Tagged ‘Arizona Medical Marijuana Act’
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.
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.
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.
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.
This month marked the 2nd anniversary of our Arizona Medical Marijuana Program. We began issuing cards to qualifying patients 2 years ago this week, and as of April 16th we had about 38,000 qualified patients in AZ.
On the Dispensary side of the house… 16 dispensaries are approved to operate in AZ, and another 13 have turned in their paperwork asking for an opening inspection. All 98 of the applicants that received Registration Certificates last Summer have until August 7th to complete all of our requirements and earn their operating license- because all of the certificates expire on that day. Also, June 7 is the deadline for prospective dispensaries to turn in their Approval to Operate application.
By the way, the state computer system will be down for maintenance this Saturday 4/20 and there may be intermittent service, but things should be back on-line Sunday.
Last January we accepted petitions from the public to add PTSD 1; PTSD 2; Depression; Migraines; and Generalized Anxiety Disorder to the list of conditions that qualify patients to receive a Medical Marijuana Registration Card. Because my guiding principle for making the decision was to use science and research to make the decision, we contracted with the U of A College of Public Health to do an evidence review of published scientific studies to help us to make a more informed decision. You can see the UA’s analyses for Depression; Generalized Anxiety Disorder; Migraine Headaches; and Post Traumatic Stress Disorder (PTSD) on our petition website. Our literature review found limited scientific evidence to document whether Cannabis is helpful or not for the petitioned conditions or that support permanently adding the petitioned conditions to the statutory list of qualifying debilitating conditions identified in the Act. In short- I didn’t approve the petitions last year because of the lack of published data regarding the risks and benefits of using Cannabis to treat or provide relief for the petitioned conditions.
The AZ Medical Marijuana Act requires us to periodically accept petitions to add new medical conditions- and we are once again accepting petitions to add new debilitating medical conditions this week (January 25 – 31) on our petition website. Our medical team will meet after January 31st and will be providing me with an initial analysis regarding whether any petitions we receive meet the screening criteria… and we’ll be using the UA College of Public Health to review the scientific literature for any that pass the screening test. Assuming we receive qualified petitions, I’ll need to make a final decision by July 2013. Our website shows folks how, what, where, and when to submit petitions.
Last week a Superior Court judge ordered Maricopa County to process the zoning paperwork that has been submitted by the applicant for the Sun City CHAA. The Maricopa County Attorney asked for a Stay of the decision while he appealed the case to the Court of Appeals. This morning, the Superior Court judge denied that request for a Stay. There’s still an appeal pathway for the Maricopa County Attorney if he asks for a Stay of the decision from the Appellate court while the pre-emption arguments are made at the Appellate level. For our part- we did not take a position at today’s hearing… and we will simply continue to wait for the applicant in the Sun City CHAA to turn in its zoning paperwork, which would complete the application. At that point we would process it the same as the other 98.
By the way- AZ now has 3 operating dispensaries, one in Glendale and one in Tucson. Another dispensary in Cochise County opened today. Because of the 3 operating dispensaries and provision in the voter approved language that only people that live more than 25 miles away from a dispensary are authorized to cultivate, more than 70% of Arizonans now live in areas where self-cultivation will no longer be permitted. However, we’re grandfathering the cultivation rights for current card-holders until they renew their card or move into an area that’s within 25 miles of a dispensary.
A Superior Court judge ruled today in the dispensary case concerning the applicant in the Sun City CHAA. The judge ordered the county to begin processing the required zoning paperwork. This was the only application for this area, so the next step for the applicant is to submit to us a completed application including the zoning paperwork from the county. The Department will process this application the same as the other 98 applications.
The voter approved list of conditions that already qualify patients for an AZ Medical Marijuana Registration Card (with a doctor’s certification) includes any of the following: any chronic or debilitating disease or medical condition (or its treatment) that causes severe and chronic pain, severe nausea, severe and persistent muscle spasms, wasting, or seizures, cancer, glaucoma, HIV, Hepatitis C, ALS, Crohn’s disease, agitation of Alzheimer’s disease. The AZ Medical Marijuana Act also requires us to periodically accept petitions to permanently add new medical conditions to the list of conditions that qualify folks for a card.
We accepted petitions from the public to add new medical conditions back in January. Folks submitted numerous articles as a part their petitions for PTSD 1; PTSD 2; Depression; Migraines; and Generalized Anxiety Disorder. We also received lots of informal comments regarding adding PTSD; Depression; Migraines; Generalized Anxiety Disorder and General comments. We also heard in person testimony from dozens of folks at our public hearing in May.
Because my guiding principle for making the decision was to use science and research, we contracted with the U of A College of Public Health to do an evidence review of published scientific studies to help us to make a more informed decision. You can see the UA’s analyses for Depression; Generalized Anxiety Disorder; Migraine Headaches; and Post Traumatic Stress Disorder (PTSD) on our petition website. The UA used the GRADE methodology to evaluate the quality of the studies looking at the benefits and harms of using Cannabis to treat or provide relief for the conditions that were petitioned to add to the list of qualifying conditions for a Medical Marijuana Registration card. Also, our ADHS Medical Advisory Committee reviewed and analyzed the data and provided me with recommendations earlier this week.
We heard and received a host of moving stories from the public both on-line and during our a public hearing in May. Many of the commenters and folks that testified self-reported that they believe Cannabis provided relief for the petitioned conditions. However, our literature review found limited scientific evidence to document whether Cannabis is helpful or not for the petitioned conditions or that support permanently adding the petitioned conditions to the statutory list of qualifying debilitating conditions identified in the Act. In short- I didn’t approve the petitions because of the lack of published data regarding the risks and benefits of using Cannabis to treat or provide relief for the petitioned conditions.
However, some of the petitioned conditions (such as migraine headaches) already qualify patients for a medical marijuana registration card if they cause severe and chronic pain, severe nausea, severe and persistent muscle spasms, wasting, or seizures.
Whatever you think of the decision, just know that our team and I really took an objective and close look at the scientific evidence before making this decision. And remember, the Act provides for a judicial review of this decision and a continuing petition process. In fact, we’ll be accepting petitions again next week.