Medical-Pot Edibles Are Legal, but Prosecutors and Cops Aren't Backing Off
Uncle Herb's medical-marijuana dispensary, tucked away near pine trees in an industrial area of south Payson, has the homey feel of a country store. Red brick and wood trim accent the interior. T-shirts and other products hang in a gift area near the two bars displaying pale green cannabis buds in glass cake stands. The small commercial kitchen, visible from the bud-tending area through a large window, is modern. So is the kitchen's special helper — a six-foot-tall collection of stainless-steel canisters, flexible hoses, and gauges that the staff calls "Wall-E."
Roughly similar to models advertised for $25,000 or more on websites, Wall-E's a botanical extraction machine that can pump out hash oil all day long, converting pounds of cannabis flowers (a.k.a. buds) into ounces of dark goo loaded with THC, marijuana's main active ingredient. The super-potent paste gets added to Uncle Herb's growing takeout menu of medicinal food and drink products sold to qualified patients: ice cream push-ups, brownies, cookies, jars of honey, and other "medibles," all infused with a precisely measured amount of the concentrate.
"Once made, the edibles have a little of an earthy taste, almost like a yerba mate tea," says Kaylynn Arnold, one of the dispensary's employees. "Some people really like it."
The level of herbal taste depends on several things, including the particular strain of weed that made the paste. A popular indica variety called "cheese," for instance, "is really fruity," she says.
The extraction process is way advanced from the millennia-old traditions of hashish-making. A food-grade solvent — likely butane or carbon dioxide (staff members don't want to say) — releases resin suspended in the plant. Another cycle boils off and flushes out the solvent. As unappetizing as it sounds, the extraction method has the blessing of state inspectors in Colorado, where adults 21 and over will be able to buy marijuana, hashish, and marijuana-infused products in retails stores after January 1.
In Arizona, patients and caregivers have been legally experimenting with their own recipes since the passage of 2010's Medical Marijuana Act. Medibles made with various marijuana concentrates have been sold in state-approved dispensaries since the first one opened last November. As of this month, 72 "operational" dispensaries were listed in state records.
Medical-marijuana kitchens, which require extra regulation and bureaucratic requirements to get started, have been slower to roll out.
On a recent Friday in mid-September, Uncle Herb's ran one of only seven state-approved medical-pot kitchens. The dispensary, open for about a month, is the only one of its kind in the Gila County mountain town 90 minutes northeast of Phoenix. Owner Tiffany Young and her husband, Matt, have built something that's finally taking off after two years of hard work.
Young's in her 30s, talks fast, and has a get-it-done attitude. She's an expert in real estate short sales who used to help run her husband's family business in Alaska putting utility lines underground. The Youngs have $1.5 million of their own money invested in the dispensary and no outside investors, which Young says allows them the freedom to follow their own interests. One of these interests is making medibles, which the Youngs see as a more healthful alternative to smoking marijuana.
Her husband's family also ran an "unofficial business" in Alaska, she says, making edible medical-marijuana products for their many extended family members.
"Everyone had years and years of experience baking with medicine," she says. "We know the recipes and techniques, what works and doesn't work."
There actually was an Uncle Herb involved in the Alaska operation — he died from cancer.
The Youngs moved to Arizona after the passage of the 2010 law, ready to try their hand at operating a legitimate medical-marijuana business, with an emphasis on medibles. Food products make up half their sales.
Friday is the main cooking day at Uncle Herb's, and a warm smell of fresh-baked food fills the air. Young and Arnold are in the kitchen making brownies. One batch in a glass tray is cooking in the oven. The women stand at a counter working with brownie squares.
These aren't crude pot brownies, made by simply tossing dried, crushed marijuana into batter. There's no marijuana in the brownies themselves. The sugary frosting, though, is made with Wall-E's potent potion.
Young and Arnold coat each brownie with a tablespoon of the concentrate, then place the square in a plastic container, doing equations on paper after each one is completed. They know how much each brownie weighs, how much of the weight is from the cannabis extract, and how many milligrams of THC are in each. Some will have 180 milligrams, others as low as 60 milligrams. Rigorous testing of the concentrate and marijuana ensures proper potency and purity.
Without such careful measurements, the potency and health benefits of each pot-infused marijuana product — whether brownie, cookie, or drink — would be uncertain. That is, there'd be no reliable way to tell whether the product contained too little or too much THC. To establish a high level of professionalism, the Youngs are taking a more scientific approach to medibles than state law requires.
The business is prepared to supply dispensaries all over Arizona with its expertly made cannabis food.
"We can turn this into mass production almost overnight," Young says.
And they might've — but for a quirk in state law that threatens to spoil the picnic.
Foodstuffs infused with marijuana concentrates always were supposed to be part of the package when voters approved Proposition 203, the Arizona Medical Marijuana Act, in 2010. Supporters said at the time that one reason patients would be allowed to possess so much pot — they can buy 2.5 ounces every two weeks and possess up to 2.5 ounces at a time — was because some patients preferred infusing concentrated forms of the medicine into food rather than smoking.
The AMMA defines "usable marijuana" as the flowers (buds) and "any mixture or preparation thereof."
In 2011, though, cops and prosecutors took another look at the Arizona criminal code and found a loophole for themselves: Another statute, this one decades old, defines a "narcotic" called "cannabis" as the "resin extracted" from any part of the plant and "every compound, manufacture, salt, derivative, mixture, or preparation of such resin of tetrahydrocannabinol [THC]."
It's an inaccurate definition, experts agree. For one thing, where it says "cannabis," it probably meant "hashish." Regardless, the new law seems to allow extracts with its "any mixture or preparation thereof" clause and arguably should trump the old law.
However, this conflict of the law has thrown the issue of marijuana concentrates and food items into a cloud of confusion over the past couple of years, culminating in a late-summer announcement by the Department of Health Services that many types of pot-infused food and drinks may be illegal for medical users, who otherwise would be protected from prosecution.
Essentially, legal officials claim that the medical-pot law provides no protection for extracts, concentrates, or the food and drinks that may contain them. Under their theory, qualified patients and dispensary officials could be charged with a felony for possessing or making marijuana extracts.
The DHS is working on new guidelines to address the concerns of law enforcement on marijuana extracts and food items. The guidelines, to be released this month, may include restrictions on extraction machines and all products that use extractions of any kind, since it appears that nothing less will satisfy law enforcement. A ban on extractions would mean the elimination of most infused food and drink products, industry representatives say.
The news about the upcoming guidelines, which came in the form of blog posts by DHS director Will Humble on August 30 and September 2, rocked Arizona's fledgling dispensary industry, which has struggled from the start with delays and legal and political obstacles.
In early 2012, Republican-led efforts to derail the AMMA failed when the courts ordered Governor Jan Brewer to begin respecting the wishes of voters. After Arizona Organix of Glendale made history nearly a year ago by becoming the first retail store in Arizona to legally sell marijuana to qualified patients, dozens of stores followed.
But now a significant portion of the dispensary's business, medibles, could be made off limits for patients. In fact, some officials claim they already are off limits — and that patients should consider themselves warned.
The advisory and pending DHS guidelines come at a time when the medicinal use of marijuana still is evolving in Arizona, where about 40,000 patients are registered. Advocates claim that eating or drinking the marijuana plant provides proven health benefits without the potential dangers of smoking. Although a government study published in January 2012 revealed that moderate pot-smoking, even over many years, may not impair lung function, other studies have shown that the smoke in marijuana contains carcinogens and may result in problems typical of cigarette smokers, like chronic bronchitis.
Naturally, eating or drinking pot eliminates this danger. As New Times reported in its February 2012 article on pot as medicine, some marijuana researchers are experimenting with plant strains that are rich in cannabidiol (CBD) but extremely low in THC, meaning that ingestion doesn't produce psychoactive effects. But to ingest enough CBD to make a difference, advocates claim, it's still necessary to convert the plant to a more concentrated form.
The DHS announcement was enough to cause the parents of a Mesa 5-year-old, Zander Welton, to change their planned treatment of the boy for his severe seizures. Although the Weltons were approved last month by the state to give Zander medical marijuana, Humble's decree means that instead of receiving a concentrated, CBD-loaded pill, Zander's getting a less-precise dosage of dried plant material in his chocolate pudding. According to Jacob and Jennifer Welton's Facebook site, it's working. The boy, who has cortical dysplasia, went without a seizure for nearly a month using the crude method, and when he had his first one on October 2, since starting the medicine, it wasn't as severe. But his parents believe that his condition would improve even more with the concentrate.
Arizona's move to become the least food-friendly medical-marijuana state also is happening just as pot-infused food and drinks are poised to explode in popularity, following revolutionary votes in Colorado and Washington that legalized marijuana for adults 21 and older.
In July, Colorado officials released rules for recreational-marijuana retail shops that do not distinguish how marijuana is prepared. Denver and numerous ski towns across Colorado expect a surging interest by visitors to the shops, expected to open after January 1. Besides the usual buds, hashish (basically pressed resin), hash oil, and kief (another type of pressed resin) will be sold in pure forms, and buyers will find a growing universe of mass-produced, pot-infused food and drinks. Retail pot stores in Washington, anticipated for later this year, also will sell infused products.
The Obama administration cleared some of the haze regarding potential federal intervention on August 29, when the U.S. Justice Department said states with legalization laws would be left alone, as long as steps were taken to keep pot out of the hands of children and stop it from crossing state lines.
The announcement deflated arguments by Arizona prohibitionists that the medical-pot program would result in criminal prosecution of state workers, though Maricopa County Attorney Bill Montgomery continues to fight the 2010 law in the Arizona Court of Appeals.
Republican Montgomery, as expected, has taken a prohibitionist stance in the evolving battle over marijuana extracts, though other county prosecutors and various police agencies in Arizona have independently reached similar conclusions about the illegality of concentrates and certain pot-infused food items.
Problem is, their conclusions are based on a misinterpretation of the words "any . . . preparation," which should be clear enough.
Instead, the officials, possibly suffering withdrawal symptoms from busting fewer marijuana users than they'd like, have sided with the inaccurate old law, instead of the voter-approved new one.
The decades-old definition of "cannabis" under state law is, without question, unscientific and based in ignorance. State Capitol researchers helped New Times find that the Arizona statute dates back at least to 1960, meaning it even predates the 1964 discovery of THC.
"The use of cannabis to refer to the resin is confusing, as cannabis is also a common name for the whole plant, Cannabis sativa," says Jean Langenheim, professor emeritus of biology and research at the University of California-Santa Cruz. "What a confusing mess, especially if you don't understand the botany and how to separate the usage of the terms!"
"Hashish" also is a vague term, referring generally to the resin extracted from the Cannabis plant, but usually describing a sticky, clay-like, blond or brown substance made of compressed resin, like the kind seen in the 1978 movie Midnight Express. Langenheim's comprehensive 2003 book, Plant Resins, states that the words, "marijuana, hashish, and cannabis" all refer to use of the resin.
The flowers (or buds) of marijuana are where resin is found, suspended in the glands of tiny, mushroom-like stalks called trichomes. Smoking buds or hashish is just one way to ingest the resin.
But, for most of the 6,000-plus years that marijuana has been used by humankind, the plant typically was consumed as a food or drink made from its extracts. In India, for example, people typically consumed the resin in bhang, a milk drink made directly from buds.
Extracting the resin so it can be used independently of the plant material can be complicated, or very simple. Many "colorful stories" can be found in history regarding the extraction of cannabis resin, Langenheim says.
"For example, naked men or those clothed in leather were reported to have run through flowering cannabis fields in Nepal, then scrap[ed] off resin that collected on their bodies or their clothes," her book states. "In Persia and Afghanistan, plants were beaten on carpets or rolled in a carpet and danced upon; the carpets were then washed to free the resin glands."
If you believe Bill Montgomery, these would be considered illegal extractions of resin — with or without the protections of Arizona's medical-pot law.
"Extraction" is such a broad term that it could be applied to act of merely dropping buds on a table. When dry buds are knocked against a flat surface, some of the trichomes fall off. This powder, which can be collected in larger quantities using a sieve or screen, is known as kief. Pressing a lot of kief together makes something that looks like hashish and can be smoked or eaten. Midnight Express-type hashish, meanwhile, requires more processing to achieve a higher purity level and thus increased potency.
Making large quantities of extract might require a botanical-extraction machine, which can produce concentrates of 90 percent THC. (By comparison, high-potency buds might contain 20 percent or more THC.)
The most common extraction method probably is cannabutter, which is crushed marijuana and butter cooked together. The fat molecules in butter bond well to THC. Particles of plant matter usually are strained out, leaving only a potent concentrate that can be used to cook into any recipe that calls for butter.
Phoenix police say they consider even cannabutter an illegal extract not covered under the medical program.
However, it's hashish and hash oil that law officers are most concerned about because they can be consumed in their pure, potent forms by eating or smoking. Cops have long viewed hashish as a more dangerous drug than marijuana (in fact, it's the same drug), and as mentioned, the "resin extracted" from marijuana — whatever you call it — is incorrectly termed a "narcotic" under Arizona law.
Coconino County Attorney David Rozema says his understanding of the statute is that it means "hashish" where it says "cannabis."
Like many people, Rozema appears to struggle with the technical differences in this new world of marijuana and its byproducts, saying whether cannabutter is legal or illegal for medical users may depend on "whether it's butter mixed with MJ leaves or butter mixed with resin."
Given that butter mixed with marijuana is a way to extract resin, it's obvious that Rozema doesn't really know what he's talking about.
Differing county policies are springing up over the issue, meaning that a brownie might be deemed legal in one county, while in another, the same brownie might get a person thrown in jail and convicted of possessing a "narcotic."
It's uncertain whether Uncle Herb's botanical-extraction machine is operating with or without the blessing of Gila County Attorney Bradley Beauchamp, who didn't return repeated calls.
Pima County Attorney Barbara LaWall tells New Times that she can't imagine sending a qualified patient's cookies and brownies to the busy crime lab just to determine whether they contain a concentrate. On the other hand, she's decided that patients still can be prosecuted for hashish.
"We believe the drafters of the AMMA did not intend to legalize hashish for medical-marijuana purposes," LaWall wrote in an e-mail. "Had they intended to do so, they would have made some reference to cannabis, hashish, or extracted resin."
Montgomery and some prosecutors are going further, claiming that anything that smacks of "resin extracted" is prosecutable with or without medical approval. He's been warning medical-marijuana users for more than a year that he might prosecute them for possessing extracts of any kind. In the past couple of years, he and Yavapai County Attorney Sheila Polk, another ardent foe of marijuana decriminalization, have charged suspects with "narcotic" violations based on the possession of candies and other food items containing concentrates, though the suspects in these cases were manufacturing and selling the products without state approval.
No bona fide medical-marijuana users or dispensaries have been busted yet (that New Times is aware of, anyway) for hashish or food with extracts. But now, with dispensaries taking off, that soon could change.
Not surprisingly, one of the biggest fans of medibles happens to be an award-winning local chef. We'll call him Jamie, because he'd rather not have his real name published.
Chef Jamie says he discovered marijuana edibles about a year ago, after a friend recommended that he try the plant to ease the symptoms of a medical ailment. He had used marijuana on and off, but now, taking the drug is a significant part of his life. It helps with his condition — and, yes, he enjoys the buzz.
You might think that Jamie, as a chef, makes amazing culinary dishes with marijuana — and he sometimes does. But he still likes the cookies and candies he finds at dispensaries. He's tried everything from pot gummies ("they come on more slowly") to pot Pixy Stix ("they'll get you pretty good").
What he really loves, though, is using his skills to make great tincture.
He starts by cooking an ounce of buds in an oven at 350 degrees for five minutes. (Quick botany lesson: Marijuana plants contain THC-A, which has no psychoactive effects. The plant must be well-dried or heated to lose the "A," for acid, and convert the chemical to brain-tripping THC.) Jamie then soaks the buds overnight in a strong, clear liquor, like Everclear, and later strains out the plant matter. The next step, as Jamie puts it, is to "activate the alcohol with the marijuana." This involves cooking the liquid for 20 to 25 minutes at 170 or 171 degrees, which is just below the boiling temperature for alcohol.
"I do not suggest people try this at home," he insists, adding that he's a professional and has access to a commercial facility. "You can start a big fire in your [home] kitchen."
When finished, the chef has a liter of extremely potent tincture.
"My dose for myself is half an eye dropper," he says. The effects last for hours.
He's still experimenting to find the perfect strain of marijuana that will make his symptoms better and not get him too high — something that happens every now and then to users of medibles. Sensations from the drug may take 30 minutes to two hours to come on. Believing the medible isn't working, a patient might take more and soon find themselves reeling. Inexperienced users ought to be especially wary of overdoing it on medibles, which may fill the user with uncomfortable, anxious feelings, he says.
Experts point out that the increased potency of concentrates increases the risk of taking the drug. Though there's no evidence anyone's died from ingesting concentrated marijuana, common sense dictates that if you don't like the effects of marijuana, doubling or tripling those effects may be a bad idea.
The biggest danger from marijuana concentrates may come from amateurs trying to make them.
About 2 p.m. on March 10, in a small apartment complex in Edmond, Oklahoma, 26-year-old Derek Wayne Hofford managed to cause an explosion big enough to blow out his windows. When investigators showed up, he told them he'd been cooking chicken nuggets in a skillet while simultaneously filling a can of lighter fluid with butane. Police soon realized he'd been attempting to cook hash oil.
Though Hofford ended up with a five-year deferred sentence after a plea deal, he theoretically could have received a much harsher penalty. Under an Oklahoma law passed in 2011, making hashish or other forms of concentrated marijuana can get you two years to life.
Police have arrested about a dozen people under the law, though all took plea deals that enabled them to avoid long prison sentences.
Still, the difference in state laws is stunning. The same extract-making activity that merits a possible life sentence in Oklahoma has been approved by the state of Colorado to make products that, in about three months, will be sold in retail shops.
Already, Coloradans have more than a decade of experience with concentrates like hashish and marijuana edibles. Amateur hash-oil cooking isn't allowed. But under the 2012 legalization law, state regulators are overseeing the roll-out of every form of marijuana for sale. Hashish, hash oil, and tinctures will be made under "laboratory conditions" with butane- and water-extraction methods, and the end product will be tested frequently for impurities, says Brian Vicente, executive director of Sensible Colorado, the group that led the legalization effort.
Some restrictions will apply: Products that mix booze and pot are prohibited. Individual food and drink items must contain no more than 10 milligrams of THC — but customers will be able to buy those items in bulk, Vicente says.
The products will be available to state residents and visitors alike, which could result in a substantial increase in the number of people using marijuana. People who never would smoke anything might be tempted to try at least a marijuana soda, for example.
About 9 percent of Coloradans use marijuana at least once a month, Vicente says. But a recent poll showed that as many as 15 percent of residents may be interested in trying it once the retail shops open.
"Whether they remain as long-term customers or give it a whirl and move on remains to be seen," Vicente says.
The recreational-use law in Washington excludes the sale of pure hashish and hash oil. But draft rules put out by regulators in July allow the use of such concentrates in food items. The new rules are liberal: Adding a single drop of olive oil to a chunk of hash or 72-ounce bottle of tincture renders it a food item. Still, marijuana advocates say they'll attempt to get hash fully legal next year.
Critics, though, worry that the hash-oil situation will spin out of control. The potent, easy-to-smuggle liquid can be sold for up to $60 a gram on the black market in some states.
Extracts may be the future of marijuana, in other words, but they also present opportunities for problems that could cause setbacks to the country's growing legalization movement.
In March 2012, well before any of the state-approved dispensaries opened, Phoenix police looking for tinctures and candies raided the home of Doug Arfa and Charise Voss.
Cops had noticed that products the couple made turned up in cannabis clubs that reportedly violated the state's medical-pot law by selling to patients without authorization. No charges were filed, but the owners of Soccer Mom's Tinctures were terrified that they'd be charged with manufacturing cannabis. With the help of local pot lawyer Michael Walz, they sued the state hoping to get a court to rule that extracts were, in fact, as legal as buds under Arizona law.
As the case wended its way through the court system, DHS director Will Humble published a blog post on October 22, 2012, to clear up "confusion" regarding products made with marijuana.
"Patients and caregivers can make edibles and things like tinctures," Humble wrote. A commenter thanked him for the clarification.
Two months later, Voss and Arfa dropped their lawsuit based on Humble's declaration.
But Humble later unpublished the post after legal advisers told him his statement might not be accurate.
Meanwhile, a Phoenix police official wrote a letter to a dispensary owner on October 29, 2012, stating that the County Attorney's Office considered tinctures and other extractions a "narcotic drug, and they will prosecute as such." To "ensure consistency in enforcement," wrote Lieutenant Aaron Thomas, Phoenix police would "abide" by the prosecutors' decision.
"As far as the question of pulverizing the usable marijuana and adding it to a recipe, there is nothing . . . that would prevent a qualified patient, caregiver, or dispensary from doing that," Thomas wrote.
If that's the new standard, industry representatives say, the burgeoning Arizona medical-pot-infused food market will crumble. Worse, the crude method suggested by Phoenix police runs against the idea of a medical program, says Rodney (he didn't want his last name published) of a Valley infused-food company called Vital Vending, which supplies several dispensaries with infused juice and other products.
"It's not like, 'Okay, eat an entire brownie,' — it's done in milligrams," Rodney says. "It has to be measured in proper doses."
The only way to do this, he says, is to use concentrates.
Last month's DHS announcement of pending guidelines for food and drinks caused many dispensaries to take Vital Vending products off their shelves, Rodney says.
With the attitude of Phoenix police (and probably other local cop agencies) patients may be taking a risk simply by possessing edibles made with concentrates.
But the policy expressed by county prosecutors in Arizona isn't in line with the medical-pot law, which states that "any mixture or preparation" of marijuana is allowed. Hashish, hash oil, kief, cannabutter, and other concentrates are, in fact, "preparations" of marijuana, just as garlic sauce is a preparation of garlic. In a 2001 British Journal of Psychiatry article, for example, an accompanying table lists "preparations of cannabis" including hashish and hash oil.
"This is the best delivery method for the sickest patients," says Ryan Hurley, a Scottsdale lawyer who represents several Arizona dispensaries, of marijuana concentrates. "We need to get this resolved in court."
Once again, it looks as though it will be up to the state's judiciary to force Arizona's executive branch to follow the voter-approved law.
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