Earlier this month, the Court of Appeals, in a split decision, determined that the Michigan Medical Marijuana Act does NOT protect caregivers or patients who are in possession of wet marijuana that is in the drying process, from prosecution. The Courts ruling in the case of People v. Vanessa Mansour (link below) determined that because wet marijuana that was in the drying process was not usable marijuana, possession of wet marijuana was not protected by the MMMA.

The MMMA defines many of the terms of the act. The term usable marijuana is specifically defined in the MMMA. The act defines usable marijuana to mean the following: “Usable marihuana” means the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant. The Court found that because the act chose to use the word “dried” before the remaining components, that meant that wet, undried marijuana was not a part of what the protections of the act were meant to shield. Therefore, any person in the cannabis business of caregiving, who is growing under the MMMA for themselves or other registered qualifying patients, is in violation of the law, if they possess wet marijuana, regardless of the purpose for which you possess it. Even you are in the process of drying the marijuana, if you are raided and the marijuana is wet, you could be in trouble.

The ruling is quite problematic for a number of reasons. First, any caregiver that is currently growing under the MMMA, will, at some point, have wet marijuana that is drying but not usable. As a result, any caregiver must understand that if you are in possession of wet, non-usable marijuana, and the police arrive, you can be arrested and the Court of Appeals has determined that you can be prosecuted and sentenced for possession with intent to deliver marijuana, and that the immunity provisions of Section 4 and Section 8 of the MMMA will not protect you. Second, the matter creates questions about the viability of the caregiving model, and also creates a problematic situation for caregivers applying under the Medical Marijuana Facilities Licensing Act (MMFLA) for a growing or processing license.

Knowing that you are caregiving, and that the Courts are indicating that a part of your cultivation process causes you to commit, at minimum, a misdemeanor, creates potential problems for the application review process. Further, if having wet marijuana cause for criminal arrest and prosecution, how does that impact growers and processors who are to be licensed under the MMFLA. Ostensibly, the two statutes are not interlinked and so, there shouldn’t be any issues. However, the MMFLA uses the same “usable” marijuana definition as the MMMA. Specifically, subsection (ff) of M.C.L. §333.27102 defines usable marijuana as follows: (ff) “Usable marihuana” means the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant.

Therefore, it wouldn’t be a stretch to see the Courts extend that MMMA definition to the MMFLA. Such a ruling down the road could put a major crimp in the medical marijuana industry under the MMFLA, likely as a result of a possible chilling effect. The ruling clearly causes issues for registered caregivers, and, potentially, for MMFLA growers, should the Court expand this reading to cover marijuana growing and processing under the MMFLA. Essentially, because “wet” undried marijuana, according to the Court, does not meet the definition of “usable” marijuana, if authorities were to come to the location and find wet marijuana, you might be looking at potential criminal liability. If you are a caregiver and are planning to continue growing for your patients under the MMMA, and you have questions about the potential liability you have under this new ruling, don’t hesitate to contact our office for a consultation.