Medical-Marijuana Tincture Makers Sue State Over Definition of "Cannabis"

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The makers of marijuana-infused "Soccer Mom's Tinctures & Candy" are suing the state in hopes of clarifying what "cannabis" means under the law.

Back in March, cops raided the Phoenix home of Doug Arfa and Charise Voss on suspicion that the pair was selling "narcotic" drugs, a search warrant shows.

"Extracted resin and cannabis which is now in solution" were among the items being sought by Phoenix police in the warrant.

Arfa and Voss were never charged following the raid, but still could be.

One aim of their lawsuit is to prevent them or anyone else covered under Arizona's medical-pot law from being prosecuted for possession of marijuana extract or concentrates.

See also - Hash, Kief, Tinctures and Other Concentrates of Marijuana Might Not be Legal Under Medical-Marijuana Law

As we've covered in previous stories, the state has an illogical law (ARS 12-3401) on the books that defines "cannabis" as something other than marijuana, which it isn't. Hashish, tinctures and other "cannabis" products, which are composed of nothing but marijuana, merit higher penalties under the law's unscientific definition.

This definition should have been rendered obsolete by the 2010 Arizona Medical Marijuana Act, at least when it comes to medical-pot patients and caregivers.

Yet it's clear that some prosecutors are salivating at the thought of busting people under the more serious, "narcotic" felony charge.

Prosecutors in Yavapai County have hit Zonka Bar maker Chris Martin with the "narcotic" charge, even though Zonka bars allegedly had no other active ingredient besides pot. As we were researching for our recent article about the Zonka case, Yavapai County prosecutor Jack Fields told us that marijuana extracts would be legal under the 2010 medical-pot law -- but that Martin and the other defendants in that case were acting "outside" the 2010 law, and thus were eligible to be charged under the "narcotic" definition.

Fields alleges that the Zonka defendants were selling their products in violation of the 2010 law, which allows only dispensaries to sell weed to patients.

Of course, there are no dispensaries, because Governor Jan Brewer -- in a big, "screw-you" to voters -- managed to delay their opening for more than a year. In May, the state Department of Health Services approved dozens of businesses for potential dispensaries, but the stores have yet to open. Will Humble, DHS director, tells New Times that only one shop -- a Tucson business -- has applied for a final inspection with the state, but that the inspection hasn't yet occurred because the dispensary operators haven't completed all the necessary paperwork.

As mentioned, Arfa and Voss have yet to be charged with anything, much less a felony for possessing the "narcotic" cannabis. But their lawsuit also asks a judge to prohibit authorities from prosecuting them or anyone other medical-marijuana patient or caregiver on the older "cannabis" definition.

Maricopa County Attorney Bill Montgomery declines to comment on the case.

Montgomery has already showed his willingness to use the harsher designation in medical-marijuana cases, though.

Local medical-pot entrepreneur Al Sobol and three other defendants are still fighting marijuana and narcotics charges stemming from an October 2011 raid on the 2811 Club LLC. (Sobol, by the way, whose antics we covered in an August feature article, is reportedly still recovering from a brain aneurism he suffered last month).

The narcotics charge stemmed from the fact that tinctures from Soccer Mom's were found at Sobol's compassion club, which Sobol said received its medical-marijuana products through an association of caregivers. The find eventually led cops to the home of Arfa and Voss, who seem to have made the products.

Doug Arfa, who also operates local "computer handyman" businesses, referred questions to his lawyer, Michael Walz. But in a message to patients on a site that seeks contributions to a defense fund, Arfa and Voss acknowledge that they've been "reimbursed" for their products:

We know many of you have benefited from our medicines, and we have enjoyed helping you. Thank you to our patients that have reimbursed us. This has allowed us to give away more medicine to our neighbors, friends and others who could not afford it in these tough times. We never thought about making a profit as our interest was always helping others first. Now, we find ourselves in need.

Whether they could legally accept reimbursement for the tincture is a legal question above our pay grade. We've heard arguments that compassion club operators or edible-makers can be reimbursed for their expenses -- but it's the club operators making those arguments. Police and prosecutors, for the most part, say such reimbursement would constitute an illegal sale of marijuana under the 2010 law. The argument's losers could end up behind bars.

The authorities' war on "tinctures" or other pot edibles, like Zonka Bars, shows once again that the politically charged issue of marijuana has almost nothing to do with public safety. Marijuana is known to be less toxic than aspirin or Tylenol, leaving many critics of the plant to harp on the ills of smoking. But ingesting tinctures and edibles eliminate the risks of inhaling smoke.

Lawyer Michael Walz says he's hoping the lawsuit prevents any future medical-marijuana patient from being slapped with a "narcotics" charge for marijuana. He adds that because of the confusing statutes, a medical-pot cardholder could be charged now for possessing a marijuana extract.

A quote by Will Humble in today's Arizona Republic article about the matter implies that's possible: "Since there's no dispensaries, no one's able to legally make the stuff, and it's not legal to import from out of state."

We asked Humble today to clarify that quote. Here's what he wrote back: "Any patient can make what they want from their own plants or from the weed from their caregiver. They just can't sell it commercially."

Perhaps someday dispensaries will open in Arizona. If so, they should be able to legally sell marijuana-infused products that are an alternative to smoking, as the 2010 law allows.

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