When Corey and Katie (not their real names) began to run out of the medical marijuana supply they had grown in their backyard over the summer of 2012, they went to a dispensary get some more — and came away with what seemed like a great idea. At home they had a lot of leafy “shake” residue from cleaning the flowers and, at the collective, they had seen hash oil and a tubelike device for extracting cannabis resin out of the leaves. The nice people at the dispensary assured them that the oil was perfectly legal and sold them the device. They picked up a few cans of butane on their way home, went online to the Internet and looked up the instructions for making your own BHO — “butane honey / hash oil”. How simple it all seemed.

What the young couple did not know was that, earlier in the year, a neighbor had complained to police about their garden, and later that year law enforcement came by for a “compliance check.” Having already harvested their crop and with only a small amount of medical marijuana at their eastern California home, they invited the officers in to take a look around. The police noticed the capped and drilled PVC pipe tubes sitting on a shelf.

When asked, the couple replied that the devices were for making honey oil, but they hadn’t yet used them. That’s when things got ugly.

It turned out there was something else they didn’t know. Suddenly they found themselves charged with violating the so-called “meth house” law, Health and Safety code 11379.6(a). The couple was left holding the bag for something they didn’t know was illegal and hadn’t even done yet. Nearly a year and many thousands of dollars later, their case is still working its way through the courts.

“We were shocked,” said Katie. “We never would have done it if we had known. No one ever said anything about it being against the law.” Even more confusing, the oil is legal for a qualified patient to possess, however, using a solvent to extract it carries a penalty of three to seven years in prison plus a hefty fine.

Things could have gone worse. When a patient in coastal California paused to light up a medical marijuana cigarette one day in 2013, there was a flash explosion that injured her and her child, caused by butane fumes lingering in her kitchen. Not only was she burned and jailed, her child was injured and taken away from her by Child Protective Services (CPS). Few of her friends were willing to step to her defense after the tragedy, and she was left with a public defender to fight charges that at one point included child endangerment, child abuse, maintaining a meth lab and marijuana cultivation.

Process over substance

The problem is one of process over substance. HS Section 11379.6(a), the so-called meth house statute, states, “Except as otherwise provided by law, every person who manufactures, compounds, converts, produces, derives, processes, or prepares, either directly or indirectly by chemical extraction or independently by means of chemical synthesis, any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 shall be punished by imprisonment in the state prison for three, five, or seven years and by a fine not exceeding $50,000.”

The volatile and dangerous process of butane honey or hash oil production drew the attention of the California Second Appellate District Court of Appeal in The People v. Bergen (2008). The court concluded that because the statute “prohibits and punishes the specific means used to process marijuana plant material into concentrated cannabis. In this sense section 11379.6(a) is a more narrowly drawn statute, covering only specific methods of processing “marijuana”—which by statutory definition includes concentrated cannabis (§ 11018).”

Butter and water hash are legal for qualified patients to make

The Bergen court continued, HS “11358 would be appropriate, for example, if the resin was physically extracted from the marijuana plant through pressure, through a screening process, or by using an ice water method to produce the concentrated cannabis. Similarly, section 11358 would properly apply to the production of concentrated cannabis if the method used was instead by leaching the resin from the plant material by dissolving it in a nonchemical lipid extractor, such as butter.”

The big difference is that while HS 11358 is mentioned repeatedly in the state’s medical marijuana laws, 11379.6(a) is granted no legal authorization by those laws. “Butane is a flammable solvent as evidenced by its use in cigarette lighters and the like,”explained the court. “He manufactured and chemically processed the concentrated cannabis in a lab located in a house situated in a residential community. Bergen’s activities thus posed a risk of fire to the residence and to the public at large.”

On the one hand, a certain group of patients who require or appreciate a high dosage and very fast delivery now have access to a form of cannabis that is highly concentrated and hits the system with as much cannabinoid content as could be the equivalent of eight puffs or even an entire “joint” in just one inhalation. On the other hand, as collectives have gained acceptance for safe access to the large range and wide varieties of products they make available, a new group of providers are taking additional legal and health risks to provide the oils and waxes that have come into vogue.

And while some consumers — most particularly younger ones — have come to appreciate and to acclimate to the one-hit wonder known as dabbing, in which a red-hot “nail” is touched with a small “dab” of concentrate and releases a thick cloud of cannabinoid vapors to be inhaled, others are concerned by the combination of the features of dabbing. The risk of using blow torches and ultra-heated metals. The occasional person who takes a dose, has a sudden drop in blood pressure then falls over and gets injured. The patient who is incapacitated by the dose and spends a few hours feeling disoriented and disphoric. The first time user who is so put off by the massive dose when they try a dab that they never learn to appreciate the nuanced and subtle effect of the natural flower.

Questions raised at international conference

At the Drug Policy Alliance-sponsored International Conference on Drug Reform in October 2013, the issue was the focus of a panel of experts who framed the topic from a number of directions but all agreed that there is a potential for some injuries to individuals and a possible public relations disaster for the reform movement due to the media accounts of fires from the process.

“One of the great arguments for cannabis reform has been that it is natural and safe,” noted an attendee during the audience comments portion of the panel. “Using a strange green or brown paste doesn’t seem very natural and using butane and blow torches to make and consume it doesn’t seem very safe.”

However, panelists agreed that the material can be made and used safely and that there will still be a place for the natural flowers and traditional resin concentrates like hashish. Moreover, they all agreed that the process and culture of dabbing are here to stay, so the community has to learn how to mitigate those risks. For a “dabber,” that means sitting down while they puff and stopping after each inhalation to make sure they have not consumed too much. For a manufacturer, that means using safer solvents, like CO2, or safer extraction systems, with industrial grade safeguards.

At the 2013 Seattle HempFest in Washington State, the world’s largest “protestival” for cannabis reform, a high volume extraction system that fully recaptures and reutilizes the solvents was on display at the Hemposium booth. Unfortunately, the California law still makes it illegal to use the system for cannabis, even though it is legally used to produce essential oils from other plants.

Dangerous situation created by Drug War

As is so often the case, this is a problem the Drug War has created. There are safer ways to use butane, such as using it outdoors where it dissipates quickly and does not pose a risk of flash fires — but it’s still polluting and it’s still illegal. However, there also are businesses that are licensed and permitted to extract essential oils from plants other than cannabis, that use closed loop extraction systems that capture and reuse the chemical solvents. The technology may be clean and safe, but the Drug War makes it risky for companies to dabble in medical marijuana extraction, so we are left with the dirty process of home made BHO.

While few argue that the process of making BHO at home is safe, it does appear to be remarkably clean. The volatile carbons of the butane seem to evaporate leaving little or no significant trace residue.

It also means that there should be labeling on the package warning people to moderate their dose, sit down when using, take care with hot metal objects and to not manufacture this product at home.

So this is a controversial issue that could be easily regulated by legislation to allow industrial distillers of essential oils to process medical marijuana into concentrate for patients and require safety warnings on the label. Dispensaries should warn patients about the legal and safety hazards of making their own BHO and should not sell butane extractors.

One other thing it would have been helpful for Corey and Katie and other patients to know: There are no mandatory compliance checks in California, it’s basically a request by police for patients to waive their fourth amendment rights against illegal search and seizure. Like the vampires of legend, police cannot enter your home without a warrant, but once you’ve invited them in, they are free to destroy your life and suck the blood out of your family and bank accounts, and maybe ruin your life. If the young couple had not invited the police in to see their garden, their legal problems would not have existed.

Take-away lesson: Be smart, be safe

The lesson for every cannabis consumer is to be safe and when confronted by police, always remain silent and never invite them into your home or vehicle. Their job is not to “help you,” despite what they say. Their job is not to explain the risks and set you back on the right path. Their job is to build a legal case against you to send you to prison for as long as they possibly can. And that’s a lot more hazardous to a patient’s health than dabbing will ever be.

Making honey oil, on the other hand, can be as dangerous as getting busted. So don’t blow it making hash oil, and above all, do not help drug police ruin your life.