Jacob Welton with Zander. Parents of the 5-year-old sued state to ensure that he has access to marijuana products made from extracts after state, county officials say wording of 2010 law allows only use of whole plants or parts. Photo by Randy Stock, courtesy of the family

Photo by Randy Stock courtesy of the family

PHOENIX — Saying their 5-year-old child’s life may depend on it, a Mesa couple have sued to demand legal access to extracts of marijuana for him.

Jacob and Jennifer Welton say the only thing that has helped control “numerous active seizures” their son Zander suffers because of birth defects that have affected development of his brain has been a mixture of chemicals from marijuana made in part from a hemp extract. They also said the drug combination they were using also has aided in addressing Zander’s autism and physical development.

But a conclusion by state Health Director Will Humble that extracts may be illegal under the 2010 Arizona Medical Marijuana Act, coupled with similar decisions by prosecutors and threats of police action, have made that extract unavailable for Zander, even though he has a state-issued card entitling his parents to obtain medical marijuana for him.

That has left the couple trying to feed Zander dried marijuana leaves, which they can still legally obtain, crushing it up into the child’s food. But his father said that’s not a real option.

“It’s a real fibrous material,” he said. “That’s kind of like taking hay and chopping it up into applesauce to him.”

And Zander, being a 5-year-old, figures out quickly what he doesn’t want.

“He starts to filter it through his teeth,” his father said.

His mother said other forms of administration, like smoking or even creating a tea, are unacceptable, at least in part because heating the plant releases the psychoactive properties of marijuana that would make the child “high.”

“That’s the part that we’re trying to stay away from,” she said.

So they want Maricopa County Superior Court Judge Katherine Cooper to rule the 2010 voter-approved law allows patients like Zander to obtain marijuana in extract form.

The ultimate outcome of the case is likely to have implications beyond Zander.

Both Maricopa and Pima County prosecutors take the position that dispensaries that sell extracts — and patients who either use or make them — are breaking the law. It is likely to take a ruling by the Arizona Supreme Court to resolve the issue. The legal question is so complex that Amelia Cramer, chief deputy Pima County attorney, said Tuesday that patients who make a tea out of the marijuana leaves they legally acquire may be creating an “extract” and can be prosecuted.

But attorney Emma Andersson of the American Civil Liberties Union said the prosecutors are off-base.

“The Arizona Medical Marijuana Act, both the text and the intent, are clear that patients like Zander should be getting the best medicine possible for them,” she said.

Humble acknowledges that the 2010 law clearly makes food products made from marijuana legal. There is no requirement that the plant be smoked or eaten.

But Humble said, strictly speaking, the law legalizes only “usable marijuana.” He said that requires any food products to contain actual pieces of marijuana. Anything without the pieces is an extract, which he said remains a felony.

That’s the position of not only Maricopa County Attorney Bill Montgomery but also the Phoenix Police Department. And Andersson said that, in turn, has made it impossible for the couple to buy the hemp oil they had been using before.

She said this is more than an issue of convenience and palatability. It goes to the numerous chemicals in the marijuana plant, with the one most beneficial for Zander commonly found in a hemp extract, typically called CBD oil.

“The neurologist told them that there was nothing else left for Zander to try if they did not want him to undergo the proposed third brain surgery,” Andersson told the court.

The results, according to the lawsuit, go beyond a decrease in Zander’s seizures.

“He is showing signs of wanting emotional stimulation and notices that people are people, not inanimate objects,” the lawsuit states.

Neither Humble nor Montgomery would comment about the lawsuit.