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New Medical Marijuana Law for Extracts, Definition for 'Plant'

As you may have heard, Governor Rick Snyder recently signed several pieces of legislation that are poised to shake up medical marijuana in Michigan. As part of our continuing blog series, Glaza Law will delve into the finer points of the new rules to give patients, caregivers, and cannabis entrepreneurs the information they need. Throughout this blog series you can use the provided links to delve deeper into some of the referenced rules and relevant case law.

The new measures address soon-to-be-established medical marijuana facilities, mandate a state-run marijuana tracking system, and enact important changes to the already existing Medical Marihuana Act (MMA). As a side note, the MMA uses the term ‘marihuana’ instead of ‘marijuana’ — I prefer the term cannabis over either spelling — but I will strive to use the term marijuana throughout this blog series when not quoting the Act directly.

Effective December 20th of 2016, there are new definitions and amendments to the MMA that will affect marijuana extracts, extraction methods, and how patients and caregivers count their marijuana plants.

Cannabis Extract: Shatter
Cannabis Extract: Refined Butane Hash Oil

First off, there is a very important modification to the MMA’s definition of usable marijuana. The definition now adds “plant resin, or extract” to the current definition that includes “the dried leaves [and] flowers… of the marihuana plant.”[1] This expansion means that usable marijuana will now include marijuana extracts and concentrates such as wax, shatter, budder, and butane hash oil. There is some discussion among cannabis attorneys that such extracts could also be classified as marijuana-infused products under the new law (see our blog about marijuana-infused products). I believe that such formulations were intended by lawmakers to fall into the category of extracts, but there is some grey area: a “marihuana-infused product” is defined as “a…product containing any usable marihuana that is intended for human consumption in a manner other than smoke inhalation.” Cannabis aficionados say that certain extracts are meant to be consumed through vaporization rather than smoking; the difference being the amount of heat applied to the extract. Using this argument it could be asserted that shatter or wax is a marijuana-infused product because sophisticated dabbing rigs with adjustable heating elements are designed to vaporize the extract rather than burn it. Arguably this method is “consumption in a manner other than smoke inhalation,” thus fitting into the definition of a marijuana-infused product. I think it is unlikely that the court would accept such an argument, but that may not stop criminal defense attorneys from presenting such a defense if their client has few well-tested defenses.

Why does this distinction between usable marijuana and marijuana-infused product matter? If an extract such as shatter is considered to be “usable marihuana” then a registered patient or caregiver may only legally possess 2.5 ounces—a modest amount. If the extract is considered to be a “marihuana-infused product” then the new equivalency formula applies (see our blog about marijuana-infused products). I won’t bore you with the math but that would mean that a registered patient or caregiver could legally possess 40 ounces of extract (that’s 2.5 pounds!)—this is an extraordinary quantity when you are talking about an extract that may contain more than 80% THC.

On the topic of marijuana extracts, the MMA has also addressed the dangers involved with butane extraction by mandating that extraction be undertaken with reasonable care and prohibiting such extraction in public places, motor vehicles or residential property.[2]

Cannabis Clone

Another important change taking effect on December 20 is the new definition of marijuana plant. The term plant was not defined in the original MMA but through case law has been construed to include plants with “readily observable evidence of root formation” (see People v. Ventura). Under the new definition a marijuana plant is defined as “any living organism that produces its own food through photosynthesis and has observable root formation or is in growth material.”[3] The key phrase here is “or is in growth material” because visible root formation would no longer be a requirement. This new definition is very important for patients and caregivers who tend to their own marijuana plants and want to maintain a perpetual harvest.

The changes described above are a step in the right direction for medical marijuana law in Michigan, but there is still have a long way to go and some questions remain unanswered. One aspect of the new rules that can have a huge impact on those facing potential legal trouble is that some of the new laws amending the MMA are curative and retroactive in nature; this means that the new rules and definitions could be applied retroactively to illegal conduct that occurred in the past. Whether retroactive application can help your case depends on your particular circumstances, so contact Glaza Law today to find out how we can help.

[1] Michigan Medical Marihuana Act §3(l)

[2] Michigan Medical Marihuana Act §7(b)(6)

[3] Michigan Medical Marihuana Act §3(f)