Under the Michigan Medical Marijuana Act not all edibles are baked alike.
For those who are caregivers or patients under the Michigan Medical Marijuana Act, beware, the legal landscape continues to shift.
On July 11, 2013, the Michigan Court of Appeals issued an opinion in People v. Carruthers. In that opinion the court held that edibles (in this case brownies) made from marijuana resin do not count as “usable marijuana” as defined under the Michigan Medical Marijuana Act. Edibles made with resin will, however, constitute marijuana as contained in section 4 of the MMMA. The end result of this analysis is that your edibles made from resin will count as marijuana, but will not count as usable marijuana for purposes of a §4 defense under MCL 333.2642 et. seq. Therefore, if you have edibles made from marijuana resin you will be outside the purview of the Michigan Medical Marijuana Act and will be subject to prosecution on those edibles made from marijuana resin.
However, section 8 of the Michigan Medical Marijuana Act does not limit its protection to “usable marijuana.” Therefore, edibles made with resin will not necessarily preclude a caregiver or patient from putting forth a section 8 defense. (See Kolanek previous blog post).
The court noted that under the Michigan Medical Marijuana Act edibles could be made to comply with “usable marijuana” requirements contained in the statute and therefore, would be entitled to section 4 protections. The court stated “our interpretation also does not preclude the medical use of marijuana by ingestion of edible; to the contrary, such use is authorized by the MMMA, within the statutory limitations, provided that the edible is a “mixture or preparation” of “the dried leaves and flowers marijuana plant,” rather than of the more potent THC that is extracted from marijuana resin. Again, we find that judgment of the drafters of the MMMA, in so defining “usable marijuana,” to be an appropriate exercise of its duty to define the parameters of legal medical marijuana use.”
It is my belief that this opinion and conclusion are open to attack and may well be altered if not completely overturned, if and when this issue is taken up to the Michigan Supreme Court. I believe this opinion has opened the door to many questions and potentially unintended results. Some of the questions: How to determine what edibles are from resin and which are from flowers and leaves? What about resin from flowers and leaves, can that be used? Also, if resin edibles are not usable marijuana, but do constitute marijuana and add to the weight, what about stems and seeds – stems and seeds are marijuana under the criminal code, but not “usable marijuana” under section 4. So do we now include their weight? Will stems and seeds then be counted under section 4? It is my belief this opinion runs contrary to the clear language of the MMMA and will be overturned at some point.
Another outstanding question after this opinion is what weight should be counted in a criminal prosecution. The weight of the marijuana resin/dried leaves and flowers within the edible, or the entire edible. The court did not rule on this issue.
After this opinion any caregiver or patient using/producing edibles should proceed with extreme caution under the Michigan Medical Marijuana Act.
Just a reminder it is still a federal criminal violation to possess and/or deliver and/or possess with intent to deliver marijuana.
Please note as always that if an individual is convicted of a crime involving a controlled substance in Michigan, action will be taken against their Michigan drivers license. The Michigan Secretary of State does not differentiate whether the controlled substance violation happened in a car or otherwise, they will simply take action when they receive notice of the conviction.
