Schmidt Law Services Blog

Lisa Schmidt

Cannabutter Brownies Are Not Usable Marijuana, Court Says

Pile of Two Chocolate Brownies on a PlateA Michigan Court of Appeals recently published an opinion on the Michigan Medical Marihuana Act (MMMA) drastically limiting the definition of usable marijuana. This decision could have a serious affect the way qualified patients are allowed to take their medicine.

The defendant was a certified caregiver for four patients. He was stopped while driving on a suspended license. Officers found 9.1 ounces of dried, usable marijuana, and several brownies, each marked with a price and the amount of TCH in them. The police arrested him and charged him with possession of a controlled substance with the intent to distribute, even though the defendant produced his caretaker card and proof that he was the registered caretaker for four qualified patients.

The question that brought the case to the appeals court was whether the weight of the entire brownie, or just the THC should be used in determining whether the defendant had exceeded the weight allowed by the MMMA. But that wasn’t the real issue, as far as the court was concerned. In a surprising decision, the court found that brownies made with THC extract from marijuana resin do not qualify for protection at all under Section 4 of the MMMA.

As is often the case, it all came down to definitions. Different parts of the MMMA use different definitions for the medicine they cover. Some sections, including the Section 8 affirmative defense, use the broad definition of marijuana from the public health code:

“Marihuana” means all parts of the plant Cannabis sativa L., growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination. MCL 333.7106(3).

But Section 4 applies specifically to “usable marihuana,” which is more narrowly defined as:

[T]he dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant. MCL 333.26423(k).

The court said that because the THC in the brownies came from resin and not from dried leaves and flowers, the defendant could not get the case dismissed under Section 4. But since Section 8 uses the broader definition, the defendant was allowed to go back to the trial court and assert his Section 8 defense.

This decision could have a huge impact on how qualified patients take their medicine. Many of the non-smoked preparations are made from the same kind of resin found in Cannabutter. Under this new case law, those preparations are no longer considered usable marijuana and aren’t protected under the statute. This decision basically tells patients to smoke their medicine or do nothing at all.

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