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Amicus Brief SUPREME COURT OF ARIZONA STATE OF ARIZONA, Arizona Supreme Court No. CR-18-0370-PR Appellee, Court of Appeals v. Division One No. 1 CA-CR 16-0703 RODNEY CHRISTOPHER JONES, Yavapai County Appellant. Superior Court No. P1300CR201400328 AMICUS CURIAE BRIEF OF ARIZONA DISPENSARIES ASSOCIATION IN SUPPORT OF APPELLANT (Filed with consent of all parties) Eric M. Fraser (027241) OSBORN MALEDON, P.A. 2929 North Central Avenue, Ste. 2100 Phoenix, Arizona 85012 602-640-9000 [email protected] Attorneys for Amicus Curiae Arizona Dispensaries Association TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... 3 INTRODUCTION ................................................................................................... 5 INTEREST OF AMICUS CURIAE ........................................................................ 5 REASONS TO GRANT REVIEW .......................................................................... 6 I. The Opinion warrants review because it will have an enormous impact across Arizona. .............................................................. 6 II. The Opinion upends the industry’s settled expectations. ...................... 7 III. Dispensaries manufacture concentrates using well-known, long-established processes that yield products that satisfy a wide range of patient requirements and preferences. ..........................11 A. Concentrates can be made using extremely simple processes. ...........................................................................................11 B. More advanced manufacturing methods are identical to standard processes in food production. ........................................13 C. Oil serves as the foundation for other products. .........................16 IV. The Opinion leads to absurd results. .......................................................19 A. The Opinion criminalizes this entire range of products and processes. ...................................................................................19 B. The Opinion’s reasoning would bar any effective edibles or drinks, contrary to AMMA’s text. ...............................21 V. Under any measurement standard, Jones’s hashish fell far below the statutory allowable amount of 2.5 ounces. ...........................23 CONCLUSION ......................................................................................................24 APPENDIX TABLE OF CONTENTS ....................................................... APP026 APPENDIX ................................................................................................... APP027 2 TABLE OF AUTHORITIES Page(s) Statutes A.R.S. § 13-3408 .....................................................................................................19 A.R.S. § 36-2801 ........................................................................................ 21, 22, 23 A.R.S. § 36-2804 ....................................................................................................... 7 A.R.S. § 36-2805 .....................................................................................................19 A.R.S. § 36-2806 ...................................................................................................7, 8 A.R.S. § 36-2811 .....................................................................................................23 A.R.S. § 36-2815 .....................................................................................................10 A.R.S. § 36-2819 ....................................................................................................... 8 Administrative Materials A.A.C. R9-17-101 ..................................................................................................... 8 A.A.C. R9-17-304 ..................................................................................................... 8 A.A.C. R9-17-309 ...................................................................................................10 A.A.C. R9-17-318 ..................................................................................................... 8 Ariz. Dep’t of Health Servs., Medical Marijuana Verification System: Dispensary Handbook (June 8, 2017 ed.) ........................................... 8, 9, 10 Court Rules Ariz. R. Crim. P. 31.21............................................................................................. 7 3 Other Authorities How to Bake Perfect Brownies Every Time, https://www.preparedpantry.com/blog/how-to-bake- perfect-brownies-every-time .....................................................................22 LHaizhou Li et al., High Intensity Ultrasound-Assisted Extraction of Oil from Soybeans, 37 Food Res. Int’l 731 (2004) ............................................14 PHelene Perrotin-Brunel et al., Decarboxylation of Δ9- Tetrahydrocannabinol: Kinetics and Molecular Modeling, 987 J. Molecular Structure 67 (2011) ............................................ 15, 16, 22 Ranyan Randazzo, How Arizona’s ‘Non-Profit’ Medical Marijuana Industry Makes Millions, Arizona Republic (Jan. 26, 2018) ...................... 6 RoEd Rosenthal, Beyond Buds: Next Generation (2018) ................................. passim ShKetan Sheth et al., Patient Perceptions of an Inhaled Asthma Medication Administered as an Inhalation Powder via the Diskus or as an Inhalation Aerosol via a Metered-Dose Inhaler, 91:1 Annals Allergy, Asthma & Immunology (2003) ..................................................18 St Egon Stahl, et al., Extraction of Seed Oils with Liquid and Supercritical Carbon Dioxide, 28 J. Agric. Food Chem. 1153 (1980) .............................14 4 INTRODUCTION This is a case about whether the Arizona Medical Marijuana Act (AMMA) permits the medicinal use of the marijuana plant’s extracted oil, whether in the form of hashish or other concentrate-based products (including edibles). The Opinion warrants review because this case impacts far more than just one defendant. It affects tens of thousands of medical marijuana patients and more than 100 dispensaries throughout Arizona. The Opinion directly jeopardizes $200 million of sales annually in Arizona and upends settled expectations of an entire industry. Moreover, the majority fundamentally misunderstood what hashish and other concentrates are and how they’re made and used. This brief explains the significance of the Opinion, puts the regulatory environment in context, provides a primer on hashish and other concentrates, and demonstrates why the Opinion leads to absurd results that contradict AMMA’s text. INTEREST OF AMICUS CURIAE The Arizona Dispensaries Association (ADA) is the voice of Arizona’s cannabis industry. Its membership includes licensed dispensary owners and 5 those actively engaged in business in Arizona’s medical marijuana industry. The organization is dedicated to advancing the Arizona cannabis industry through political advocacy, public education, and professionalization. The ADA’s membership consists of 58 medical marijuana license- holders, accounting for about 60% of the retail dispensaries in Arizona and about 80% of the major cultivators in Arizona. Its members come from every county in Arizona except Apache. All of the ADA’s member dispensaries manufactured or dispensed concentrates before the Opinion was issued. The ADA and its members thus have a strong interest in ensuring that concentrates continue to be legal to dispense under a proper interpretation of AMMA. REASONS TO GRANT REVIEW I. The Opinion warrants review because it will have an enormous impact across Arizona. Medical marijuana has become a major industry in Arizona after Arizona voters passed Proposition 203 in 2010. Today, more than 100 licensed dispensaries operate throughout Arizona, dispensing about $387 million in marijuana-based products last year. See Ryan Randazzo, How Arizona’s ‘Non-Profit’ Medical Marijuana Industry Makes Millions, Arizona 6 Republic, https://www.azcentral.com/story/money/business/ consumers/2018/01/26/how-arizonas-non-profit-medical-marijuana- industry-makes-millions/907082001 (Jan. 26, 2018). The vast majority of Arizona dispensaries dispense concentrates. The ADA estimates that products affected by the Opinion make up more than 50% of total medical marijuana revenues in the State. The Opinion effectively outlaws entire categories of products that are dispensed widely throughout Arizona, affecting thousands of patients and over 100 dispensaries in the State. Resolving the legal status of concentrates (including edibles) thus is an “important issue[]” of statewide importance that warrants this Court’s review. Ariz. R. Crim. P. 31.21(d)(1)(C). II. The Opinion upends the industry’s settled expectations. Dispensaries operate in an extremely regulated environment. They must register with the Arizona Department of Health Services (ADHS), including disclosing the identities and personal information of directors and officers (who cannot have been “convicted of an excluded felony offense”). A.R.S. § 36-2804(A)-(B). Dispensaries must be not-for-profit entities, with detailed restrictions on operations and sources of marijuana. See A.R.S. § 36- 2806. Dispensaries may dispense marijuana only to registered patients and 7 caregivers and must submit to the government details about each transaction (including “how much marijuana is being dispensed to [each] registered qualifying patient”). A.R.S. § 36-2806.02(B)(1). Every employee gets fingerprinted and background-checked. See A.R.S. § 36-2819. Dispensaries
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