Are edible marijuana products like pot brownies legal in Michigan? No. Well, maybe. But, probably not. And, maybe our government will fix it. Are you confused yet? Most people are, and you should be.
The most prevalent marijuana edibles are brownies, cookies, muffins, cakes, candy, and butter. Most marijuana edibles are prepared using marijuana resin or marijuana oil, which is the result of processing marijuana leaves and flowers. After the process is finished, there are no leaves or flowers left in the resin and oil, and THC, the active drug in marijuana, is concentrated in the resin and in the oil.
Advocates in favor of marijuana edibles make respectable arguments. First, the palliative effect of eating marijuana is more potent and lasts longer. When marijuana edibles are ingested, the drug is processed by the body more slowly through the liver, and the effect is more intense and lasts much longer. This is preferable to smoking marijuana, which results in a quick but less-intense and shorter palliative effect. Second, many do not enjoy their hair, hands, clothes, and furniture smelling like marijuana smoke. Finally, there are health risks associated with smoking, and ingesting marijuana with an edible avoids the risks of smoking and does not expose others to second-hand smoke.
In Michigan, using, possessing, manufacturing, or distributing marijuana resin or marijuana oil is a crime. Some will say “But, wait. I’ve got my medical marijuana card!” That’s not a lot of help to you, and you might be going to jail or prison if you are involved with marijuana edibles.
Michigan’s Medical Marijuana Act is way more restrictive than most people realize, and it’s a serious trap for those who are not careful and extremely well-informed about the law. Here’s the problem: Michigan has not legalized marijuana. Using, possessing, manufacturing, and distributing marijuana is still against the law in Michigan. Using marijuana is a misdemeanor. MCL 333.7404. Depending on the circumstances, possessing marijuana is a misdemeanor, a high-court misdemeanor, or a felony. MCL 333.7401; MCL 333.7403. And, manufacturing or destributing marijuana is a felony. MCL 333.7401.
While using, possessing, manufacturing, or distributing marijuana is criminal behavior in Michigan, the Michigan Medical Marijuana Act creates a protection against prosecution for these crimes if a person can conform his or her behavior to the requirements of the Act. MCL 333.26421. Essentially, this means that a person who has a recognized, debilitating medical condition, when approved by a physician and sanctioned by the government, can possess (1) up to 2.5 ounces of “useable marijuana,” and (2) 12 plants if kept in an enclosed, locked facility. MCL 333.26424.
Well, that seems easy enough to understand, doesn’t it? It isn’t. For instance, only possession of “useable marijuana” as defined in the Act is protected conduct. The term “useable marijuana” is defined in the Act to mean “the dried leaves and flowers of the marijuana plant, and any mixture or preparation thereof . . .” MCL 333.26423(k). So, if a person who is qualified under the Act possesses dried leaves and flowers of marijuana in an amount less than 2.5 ounces, the government cannot prosecute that person for the crime. However, if any person in Michigan possesses any amount of marijuana resin or marijuana oil, the government can prosecute that person for crimes because Michigan has not included marijuana resin or marijuana oil in the definition of useable marijuana. People v Carruthers, 301 Mich App 590 (2013).
So, if the marijuana edible is prepared with marijuana leaves and flowers only, without using marijuana resins or oils, the edible is probably legal in Michigan.
Here’s the first problem: police in the field don’t know if your marijuana brownie is only made with leaves and flowers. Police might believe that there are marijuana resins and oils in the brownie. And, the police lab isn’t equipped to tell the difference either. So, what do police do? They confiscate your brownies and prosecute you for marijuana crimes. Maybe you’ll get a good lawyer who can present an affirmative defense for you under the Act. Maybe you’ll have evidence that the brownie is legal, perhaps through an expert witness who can testify for you about the composition of the marijuana brownie. Maybe you won’t have either.
Here’s the second problem: if one marijuana flower is put into a marijuana brownie, the weight of the entire brownie, and not just the weight of the one marijuana flower, counts towards the weight limit that a person is allowed to have under the Act. 2.5 ounces of marijuana flowers is a lot of marijuana flowers. 2.5 ounces of brownies that contain marijuana flowers isn’t very many brownies. So, what happens if you have more than 2.5 ounces of marijuana brownies? The police confiscate your brownies and prosecute you for marijuana crimes. Maybe you’ll get a good lawyer who can present an affirmative defense for you under the Act. Maybe you won’t.
Michigan’s legislature has twice considered a bill to include marijuana edibles in the protections of the Michigan Medical Marijuana Act. The first was introduced at the end of 2014, and the bill died in committee. The bill was reintroduced in January of 2015, and it’s still being considered. Until Michigan specifically passes legislation to include marijuana resin, marijuana oil, or marijuana edibles in the protections of the Michigan Medical Marijuana Act, it’s best to avoid marijuana edibles altogether.