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On March 21, 2014, Judge Katherine Cooper of the Maricopa County Superior Court ruled that Zander Welton, a young child who suffers from seizures, may consume CBD products in any form to treat his medical condition. Actually, Judge Cooper took it at least one step further. She ruled that the Arizona Medical Marijuana Act (“AMMA”) allows medical marijuana to be processed into hashish, extracts, tinctures, waxes, butters, oils and other types of products. Her decision states that the AMMA defines marijuana as “ ‘all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.’ A.R.S. § 36-2801(1). It defines ‘[u]sable marijuana’ as the ‘dried flowers of the marijuana plant, and any mixture or preparation thereof., but does not include the seeds, stalks and roots of the plant and does not include the weight of any non-marijuana ingredients combined with marijuana and prepared for consumption as food or drink.’ A.R.S. § 36-2801(15).”

Judge Cooper, one of my favorite judges because she is so smart, further held that the definition of “usable marijuana” does not limit the legal medicine to just the dried flowers. She stated: “There is nothing in the statute that limits the form in which patients may use marijuana. The AMMA applies equally to the plant and to CBD oil (which includes THC).”

Actually, another favorable Maricopa County Superior Court decision came out about one week earlier. Retired Judge Robert Gottsfield ruled, in a case involving a traffic stop during which medical marijuana leaf and candy were seized. He held that candy made out of medical marijuana is legal medicine for cardholders to possess.

Are we out of the woods yet? Not exactly. Expect Maricopa County Attorney Bill Montgomery to appeal to the Arizona Court of Appeals. He may even attempt to continue to enforce his interpretation of the law that only flower is legal, until a higher court rules on the subject. This is because a Superior Court decision does not “set precedent” in Arizona This means that the decision, technically is not binding upon any other court in Arizona, not even another Maricopa County Superior Court. However, given the very few medical marijuana decisions in Arizona, most Superior Courts will follow Judge Cooper’s and Judge Gottsfield’s decisions, unless and until the Arizona Court of Appeals overrules it, especially in Maricopa County.

Coincidentally, I also read last week that one of the larger dispensaries was shutting down its kitchen. This was before the Welton decision. I hope that they re-open it immediately.

Please remember to always carry your card and to renew it before it expires.

Jeffrey S. Kaufman, Esq.

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