This One’s Hard to Stomach

This One’s Hard to Stomach

By: Denise Pollicella for Culture Magazine

Michigan Court of Appeals: Edibles are not a form of medical cannabis

For the second time this year, Michigan courts have sucker-punched the medical cannabis community, criminalizing food products containing resin extracts overnight and giving prosecutors the go-ahead to weigh medibles in their entirety when considering charges and penalties.

In a July 11 opinion, the People v. Cantrell Carruthers panel used strict interpretation of the MMMA’s flawed statutory language to deal a blow to our medical cannabis industry and yet again abandon a large swath of the state’s sickest and most vulnerable patients.  Tinctures, oils and canna butter—products widely and commonly used for the past four years by people with cancer, seizure disorders and other serious conditions—are now contraband.

As of now, the only usable cannabis protected by the MMMA are “smokables” and products made from the dried leaves and flowers of the plant. The panel also contemplated weighing the entire medible, stating that it will not take the amount of cannabis contained in a product at face value from its labeling. In other words, a brownie that weighs 5 ounces but only contains 2 grams of cannabis will be counted as 5 ounces of cannabis.

This decision may be appealed; however, in light of the legal soundness of the opinion and our Supreme Court’s reluctance to create law, it is unlikely to be reversed. In fact, just as the McQueen court did in February, the Cantrell Carruthers court pointed a finger squarely at the legislature, telling Michigan’s citizens that if the law needs fixing, we need to look there.

Work has already begun on an amendment to HB 4271, The Provisioning Centers Act, which currently addresses the weighing and labeling of medibles, and now will have to address the significantly more urgent issue of extracts. However, as of now, and for the foreseeable future, this is the law in Michigan.

It is unlikely that high up in those appellate court chambers, the judges that wrote this opinion were thinking about anything other than dissecting the Medical Marihuana Act. Certainly they could not have been contemplating the life of my client’s son’s best friend, a 20-year old with terminal colon cancer, whose chemo treatments are so debilitating that his only option for keeping weight on his frail body is to eat canna butter foods that decrease nausea. This is a person that medical cannabis was meant for, and he and his parents now have to choose between a life with hope and a life of crime. What shall we tell him?

Between the well-intentioned but inartfully drafted MMMA, the administration’s intractable refusal to adopt regulations and the legislature’s molasses-slow treatment of all things cannabis, the toll this is taking on Michigan’s citizens is devastating. To provide broad protections for behavior, and then systematically and instantly recriminalize that behavior is, frankly, unconscionable, and as a lawyer and lifelong resident of this state, I shake my head in embarrassment at the public health and safety disaster this has become.