The rule codifies a September decision about a possible foster-care license for a woman who treats her adopted 12-year-old son's self-injuring behavior with cannabidiol (CBD). Phoenix New Times received a copy of the ruling last week after a public-records request.
As a September 1 New Times article covered, Phoenix lawyer Rebecca Masterson had been told previously by the agency that she couldn't obtain a foster-care license, which she wants to help with the expenses of raising a 16-year-old boy she has taken in.
The process had been going fine until she explained how she administers CBD oil to her 12-year-old and that she had a state medical-marijuana caregiver card. After that, the DCS told Masterson she couldn't have a license even after she showed officials proof that she'd canceled her caregiver card.
On September 7, a day after New Times called the DCS to ask about Masterson's case, the agency released a written policy explaining that state-approved medical-marijuana patients and caregivers could not use or possess cannabis — or its extracts — and be licensed foster parents.
Masterson appealed, showing the agency that she obtained CBD-containing oil online from Target. Agency officials relented, telling her that her license application would not be denied based on the fact that she possessed CBD oil or gave it to her son.
The latest policy, released November 14 and dated November 3, appears to be beneficial for Masterson and other people who may be facing similar dilemmas, even as it continues to thwart medical-marijuana cardholders.
Yet by banning bona fide patients, the new policy by DCS' Office of Licensing and Regulation lacks common sense.
The policy notes that the U.S. Drug Enforcement Agency considers marijuana extracts to be a Schedule 1 drug like marijuana. "The possession and use of marijuana extracts is a violation of federal law, even though possession and use of certain types of medical-marijuana extracts is authorized by state law in Arizona," the policy states.
The policy goes on to say that if an extract is regulated by the Arizona Department of Health Services as part of the Arizona Medical Marijuana act, it can't be possessed or used by a foster parent.
However, if the extract isn't covered under Arizona's medical-marijuana law, "a foster parent may possess the oil in their home and use it for medically allowable purposes. The oil must be safeguarded as applicable under the Arizona foster home licensing rules and guidelines."
Arguably, though, CBD products purchased in an Arizona dispensary by a medical-marijuana cardholder should be allowed for foster parents if CBD products bought without a card outside of a dispensary are allowed.
Under the Congressional Rohrabacher-Bluenauer Amendment, federal authorities aren't permitted to spend money going after state-approved medical-cannabis programs. The amendment is a key federal protection for programs like Arizona's. But CBD extracts bought and sold outside of state medical- or recreational-cannabis laws don't have that protection.
The Hemp Industry Association, which claims CBD derived from cannabis plants that contain less than 0.3 percent THC is legal, sued the DEA in January in an attempt to overturn the drug agency's stance on CBD.
The lack of legal protection is the likely reason why Target stopped sales of CBD-containing products in late September.
Dispensaries can sell CBD products that also contain THC, the compound that causes cannabis' high, but their CBD-only products essentially are no different from many CBD products found outside dispensaries.
The compound is being sold in increasing volume by various online and retail outlets.
A New Times cover story this week explains that increased awareness of the reputed medicinal value of CBD for both people and pets, a molecule extracted from cannabis that doesn't produce psychoactive effects, has spawned a multimillion-dollar industry.
New Times asked a DCS spokesman for comment about the new policy and its apparent discrepancy regarding legal protections, but the agency didn't respond.
See below for the entire DCS policy memo: