Cannabis concentrates are one of the fastest growing medicinal cannabis products on the market; they have also become increasingly popular among recreational users. Cannabis concentrates are now taking up a larger part of the market for cannabis products overall, with percentage of (overall cannabis product) consumption reaching double-digits among tracked jurisdictions. However, cannabis concentrates have been, and remain, largely unregulated. Any regulatory scheme to be implemented with the new (potential) laws around adult use will have to include the rapidly expanding concentrate market.

This article seeks to: (1) clarify why cannabis concentrates are an essential part of any ballot initiative to regulate adult use while explaining the policy considerations that that initiative must consider, (2) track the sparse legislation that has touched cannabis concentrates, (3) explain the only case so far decided on the legal classification of concentrated cannabis, and finally, (4) assemble those findings to offer policy recommendations on the topic, or at least, to help guide the conversation. As consumption of concentrates rises, the once-niche product has begun to take center stage in the adult use cannabis legalization debate. Both advocates and those opposed feel strongly about the use of concentrated cannabis, and thus it should be a significant consideration in the regulation structure that could be voted into law in November 2016.

As has been adequately documented, the state of California recently passed three bills regarding the regulation of medical cannabis, reforming the long-untouched rules on standards and enforcement of the medical cannabis market. Most of the published reactions so far have centered on the very serious issues of legal regulation, including taxation among growers and retailers (dispensaries), consumer protection via uniform standards, and land and water use.

However, concentrated cannabis – as it is most recently referred to in the law – has remained largely untouched by those bills, despite recent public health concerns. This article will offer some guidance in considering how it may factor into a newly enacted regulatory structure.

Why Do Concentrates Matter?

In the past five to eight years, increasing numbers of patients have turned to using concentrated cannabis instead of the more traditional methods of either smoking the plant (or “flower”) or making/consuming edibles. The sheer volume of use is reason enough to consider legislation specifically aimed at regulating the growing market. However, popularity is not the only reason that California policy makers should consider the importance of concentrated cannabis. There are legitimate arguments both for and against its use, and it has been one of the more polarizing subcategories surrounding the legalization debate.

On the advocacy side: doctors and patients who believe in concentrated cannabis’ medical use. It has been shown to help with epilepsy and related seizures, cancer, and (both chronic and temporary) pain and inflammation. While some of the data around medical use of concentrates is anecdotal, that should not prevent a regulation structure from taking advantage of the potential medical uses for concentrates, if they even suggest that there may be anti-carcinogenic effects, as well as generally beneficial effects for those who are suffering. Any new state law should provide for, at least, deeper medical research regarding the benefits of concentrates.

The opposition: some research professionals who are skeptical about its medical benefits outweighing the cost of regulation and the risks surrounding the potential danger of production (which I will address in a later article) of concentrates, buffeted by the classic Reefer Madness-style prohibitionists.

The very existence of such vehement advocacy on both sides of the issue is perhaps the most persuasive argument for making regulation of concentrates a central part of the conversation around cannabis regulation reform.

The policy problems that concentrates present are relatively few, when compared to the policy maelstrom of cannabis regulation writ large. The main fears around use of concentrates stem from their recent upsurge in popularity. Concentrates remain shrouded in mystery in a market that already struggles for transparency – doctors want to know whether they are medically beneficial; patients and recreational users want access to medication / high-quality concentrates that are of dependably consistent quality.

This article will now turn to an examination of legislation following the Compassionate Use Act (aka Prop. 215) to the present, to see how concentrates have been treated within the law thus far.

Recent Bills: AB 243, AB 266, SB 212, SB 643

Of the four recently enacted bills, only two of them even make mention of concentrated cannabis; they deal exclusively with the manufacture and classification of cannabis concentrates. They are Assembly Bill 266 and the less recent Senate Bill 212, the former of which simply defined the term “cannabis concentrate,” and the latter of which enhanced the sentencing guidelines for manufacturing cannabis concentrates close enough to people (300 feet) to cause harm.

AB 266 provides a definition of the term “cannabis concentrate.” It explains under section (g), “‘Cannabis concentrate’ means manufactured cannabis that has undergone a process to concentrate the cannabinoid active ingredient, thereby increasing the product’s potency.” The simple definition is intuitive, and provides little structure regarding the law’s influence on the regulation of concentrated cannabis. Luckily, the section’s second sentence provides perhaps the most helpful actual guidance in terms of concentrated cannabis regulation: “An edible medical cannabis product is not considered food, as defined by Section 109935 of the Health and Safety Code, or a drug, as defined by Section 109925 of the Health and Safety Code.” The law lumps together “concentrated cannabis” and “edible medical cannabis” in the same definition, which means that “edible medical cannabis product[s]” fall under the law(s) dealing with concentrated cannabis.

Food as it is defined in Section 109935 is similarly unhelpful. Food is either “(a) Any article used or intended for use for food, drink, confection, condiment, or chewing gum by man or other animal. [Or] (b) Any article used or intended for use as a component of any article designated in subdivision (a).” This article treats the two as the same for that reason, all the while recognizing that in reality what are referred to as “concentrates” are very different from what are referred to as “edibles.”[1]

Sometimes when we are working within the confines of vaguely worded laws, the most instructive information is in what the law is neglecting to say, or as here, what sections do not apply. Surely in this case that is the best thing to do since the only guidance as to concentrated cannabis’s legal treatment is in the negative – which is to say, the definition section makes no mention of any applicable section, but it does specifically mention two sections that do not apply.

The section concerning the definition of a “drug” – 109925 – is slightly more helpful, but again, only because concentrated cannabis does not fall within its domain. A “drug” is one of the following: “(a) Any article recognized in an official compendium. (b) Any article used or intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or any other animal. (c) Any article other than food, that is used or intended to affect the structure or any function of the body of human beings or any other animal. (d) Any article used or intended for use as a component of any article designated in subdivision (a), (b), or (c) of this section.” The fact that concentrated cannabis is not classified as a drug means that it escapes the regulation of this section, too. Concentrated cannabis seems to fall under (c), which would make it a “drug” under California Law – it is indeed “used or intended to affect the structure or any function of the body of human beings.” However, there is one likely reason that the definitions are worded this way, which is that the definitions of food and drug follow federal law, which regulates both of those items on a baseline level, whereas cannabis is still illegal on a federal level. The fact that those sections are not applicable to the sale and regulation of concentrated cannabis means that concentrated cannabis is, yet, almost completely unregulated.

Senate Bill 212, later codified at CA Health and Safety Code section 11379.6, was introduced by state Senator Mendoza following several accidents involving people who were attempting to manufacture concentrated cannabis in their homes [discussion of the accidents is in the next installment]. The bill amended the version of section 11379.6 that already existed, which provided that, “(a) 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 [sections 11054-11058] shall be punished by imprisonment . . . for three, five, or seven years . . . and by a fine not exceeding $50,000.” Subdivision (a) as listed already existed in the old version of the statute, but is important for foundation.

The amendment provides for a new subsection (d), which reads: “The fact that a violation of this section involving the use of a volatile solvent to chemically extract concentrated cannabis occurred within 300 feet of an occupied residence or any structure where another person was present at the time the offense was committed may be considered a factor in aggravation by the sentencing court.” The amendment came on the heels of several reports of explosions in residences that started when the cannabis concentrator was careless with the “volatile solvent,” which is usually butane, a highly flammable gas. Butane is used to “chemically extract” the tetrahydrocannabinol (THC) from the cannabis plant, but if there is any spark or open flame near the gas, it will explode. This amendment was shaped by public health concerns surrounding collateral damage. In the court decision explained below, the concern was not public safety as here, but the definition of (medical) concentrated cannabis itself.

Concentrated Cannabis in the Court :

At the end of last year, a unanimous panel at the California state appellate court for the third district ruled in People v. Mulcrevy that concentrated cannabis qualifies as medical marijuana. The court was considering the question in the context of 22 year-old Sean Mulcrevy’s probation violation for possession of concentrated cannabis. Mulcrevy, the government alleged, had violated his probation by failing to “obey all laws,” as he was bound to, per the terms of probation. Mulcrevy is a medical marijuana patient who was charged with unlawful possession of concentrated cannabis – a misdemeanor – in 2013.

The Sacramento Bee reported that despite “review[ing] existing legal authority indicating that concentrated cannabis is covered by California’s Compassionate Use Act,” Superior Court Judge James R. Wagoner decided that concentrated cannabis was not covered. He rejected the authority as “unsound,” instead ruling against Mulcrevy, explaining that “‘the (CUA) does not apply to concentrated cannabis’ because the act does not define marijuana, refer to concentrated cannabis or incorporate statutory definitions of either term.” Why that would prevent a judge from ruling that concentrated cannabis was in fact included within the Act’s reach is a mystery. Medical cannabis in plant form contains the same active ingredient as concentrated cannabis; one can commonly purchase cannabis concentrates at medical cannabis dispensaries. Regardless, this court decision helped to shape one of the new amendments, AB 266, and undoubtedly informed the drafters that they needed to, at the very least, define the term to preclude further confusion in the courts. And that is just what they did.

Policy Considerations Going Forward

As is probably obvious, regulation of concentrated cannabis has remained largely stagnant. Concentrates have been flying under the radar, but their growing popularity and the surrounding debate necessitates regulation. As mentioned above, there are several key interests here that should be addressed: doctors want to know whether they are medically beneficial; patients and recreational users want access to medication / high-quality concentrates that are of dependably consistent quality.

Thus, any regulatory scheme should account for further medical research into concentrates. There are several sources, including the newest chief of the DEA, that have argued for concentrates’ medicinal value, and at the very least, it should be explored so that the scientific and healthcare communities can reach a consensus. Production should be limited to approved, safe (and possibly butane-free) facilities where experienced staff process the cannabis to concentrate it, but those facilities should be allowed to maximize output, which will minimize the draw for private actors to (dangerously) attempt to manufacture concentrates at home.

Making sure that the manufacturing process is safe and consistent will in turn lead to a higher quality product because assuring those aspects of concentrate regulation will naturally lead to an increase in purity, with fewer additives. When regulation of production is coupled with medical research, both medical cannabis patients and recreational users will be able to get safely processed, consistently high-quality concentrates, while cutting down on (and eventually eliminating) the dangerous private manufacturing processes that has left concentrates as the stigmatized cannabis outsider in a burgeoning market.

[1] Edibles are, in fact, made with concentrated cannabis, but the concentrate is infused into cooking oil or butter, as opposed to being processed to reap wax or hash, which are largely inedible substances designed to be inhaled.