By: Gary Michael Smith, Esq.

If the Trump Administration’s antics made you swear off the news for the past few months, you may have missed the bombshell that exploded at the end of June, when the Arizona Court of Appeals issued a split-decision deeming all extracted and concentrated marijuana products outside the protection of the Arizona Medical Marijuana Act (AMMA). Yes, all those infused brownies, beverages, vape pens, dabs, waxes, and every other non-flower product was just ruled to be a “narcotic”, on par with heroin, and outside the definition of “usable marijuana” as permitted by the AMMA. State v. Jones is being petitioned to the Arizona Supreme Court, so stay tuned over the next year to see what Arizona’s Supreme Court does.

What does this mean?

Per the law, the Court of Appeals’ ruling is controlling. Unless the Supreme Court overturns the Court of Appeals, or until a legislative fix is implemented, the strict technical state of the law in Arizona is that everyone must follow the Court of Appeals’ determination that extracts and concentrates are not protected by the AMMA. This is unsettling news for patients who prefer extracts or concentrates, and it is altogether devastating news for the most vulnerable patients who depend upon the ability to extract and to concentrate their medicine. The Jones decision turns those patients into a discriminated group within the larger class of patients, as it denies them access to medicine that the AMMA promised. Borrowing from George Orwell’s Animal Farm, it seems the effect of the Court of Appeals’ ruling was to establish that some patients are more equal than others.

So, now what?

Let’s start with the premise that no one, not the 170,000+ patients, the 100+ dispensaries, the 5,200+ dispensary agents, nor the 913+ caregivers enjoys living with uncertainty, especially when the other end of that uncertainty could be felony criminal charges. But, that is the literal dilemma every marijuana participant faces in wake of Jones. Unless the Court of Appeals is overturned or superseded by statute, there are no such things as lawful extracts or concentrates. That said, it appears that ADHS, the police, and various County Attorneys are taking a wait-and-see approach, rather than launching raids and arrests. But, make no mistake, there is no official declaration of amnesty. The fact that no one is being arrested is purely due to an unspoken grace, a grace that could be withdrawn at any time and without warning.

What does the future hold?

For now, all eyes are on the Supreme Court. The Supreme Court picks what cases to take and it does not have to accept Jones for review. Given the magnitude of Jones being a novel issue of discrete new law, etc., there is a better-than-average chance the Supreme Court will take the case. But, if not, we will know by early Winter. If the Supreme Court accepts review, it will take about a year for briefing and oral argument. If the Supreme Court then reverses Jones, extracts and concentrates will return to protected status. If not, it will take a legislative act to bring back extracts and concentrates. If the Legislature lacks the necessary compassion to create that new law (assuming one is needed), the public always has the power to restore extracts and concentrates via a new Initiative, same as how the AMMA got created. For now, we watch and we wait, as this sudden return to the Dark Ages may last a few more years.

As final word to this modest article, I humbly suggest that the decent thing would be for Governor Ducey to make official announcement that he is directing all law enforcement to stand down, pending outcome at the Supreme Court, and to give the industry an amnesty period to deplete its extract and concentrate inventory, if the Supreme Court upholds Jones. Such announcement would be compassionate and consistent with Governor Ducey’s evolving point of view on marijuana and hemp.

Gary Michael Smith is an attorney and arbitrator and partner in the Phoenix Arizona-based Smith Saks PLC. He is also a founding director and current president of the Arizona Cannabis Bar Association. He can be reached at smith@smithsaks.com.