PHOENIX — Maricopa County’s chief prosecutor is asking a judge to throw out a bid by the parents of a 5-year-old Mesa boy who has seizures to be able to get an extract of marijuana from dispensaries.
County Attorney Bill Montgomery is not disputing whether Zander Welton needs the drug. His parents have the proper recommendation from a doctor to sign him up as a patient under the Arizona Medical Marijuana Act.
But Montgomery said Monday that those who crafted the statute legalized only marijuana, which means the plant. Any extracts fall under a separate part of the criminal code that was not altered by the voter-approved law.
Montgomery said if Jacob and Jennifer Welton think the extract works better, they should take their case to the Legislature, which can alter the law, albeit with a three-fourths vote of both the House and Senate and concurrence of the governor.
But attorney Dan Pochoda of the American Civil Liberties Union, which is representing the family, said Montgomery is legally off-base. He said it’s unnecessary to seek legislative intervention because the ACLU believes the law does allow for the sale and use of marijuana extracts.
The 2010 law clearly allows those with a doctor’s recommendation to obtain marijuana. And it specifically permits the drug to be used in food products rather than being smoked.
But the initiative never legalized “cannabis,” which is described as the extract of the plant. So Montgomery has advised agencies that monitor state-regulated dispensaries that sales of products containing only extract and no plants could be prosecuted, resulting in dispensaries pulling those products from sale.
Zander’s parents say the extract is not only more palatable than grinding up the dried plant and putting it in applesauce but also contains only the chemicals he needs and not those in the whole plant that get him “high.”
The ACLU wants Maricopa County Superior Court Judge Katherine Cooper to block Montgomery and others, including the state health department, from doing anything that precludes Zander from getting the extract. But the court fight will also affect in what form about 40,000 other medical marijuana patients can obtain their drugs.
Pochoda questioned the practicality of getting a three-fourths vote from the Legislature, which he considers unnecessary.
“The normal thing is not going to the Legislature when some prosecutor is improperly, and, in our view, illegally interpreting a law that clearly decriminalized not only marijuana but things made from marijuana,” Pochoda said.
Morgan Fox of the Marijuana Policy Project, which crafted the 2010 initiative, also contends Montgomery is misinterpreting the law. He said the statute allows use of any “preparation” of the drug, which he said includes extracts.
No date has been set for a hearing.