Macomb County marijuana edibles.JPG

Foods containing THC are not "usable marijuana" under Michigan's medical marijuana act unless they contain actual plant material, an appeals court has ruled.

(File photo)

LANSING -- Baked goods and other food containing THC, marijuana's active ingredient, are not "usable marijuana" under Michigan's medical marijuana law unless they contain actual plant material, an appeals court has ruled.

However, registered medical marijuana patients who possess THC-laced foods may still be able to claim immunity from prosecution under a different section of the law.

The ruling comes in a case centering on a January 27, 2011 traffic stop in Oakland County. Police charged Earl Cantrell Chambers with possession of marijuana with intent to deliver after a search of his car revealed "marijuana found in various locations within

the vehicle, including mason jars, plastic bags, and a binder of plastic pouches, as well as containers of brownies that were individually labeled to indicate the weight of the brownie and content of medical marijuana," according to the Michigan Court of Appeals opinion issued Thursday.

Chambers also had "packaging materials, including Glad zipper bags, labels, price labels, plastic portion cup lids, a vacuum sealer, and a grinder," the opinion states, and paperwork indicating sales had been made to a list of people.

When arrested, Chambers presented both a medical marijuana identification card, a caregiver certificate and applications for four patients. Chambers was tried and convicted of possession with intent to deliver and sentenced to 33 days in jail and three years of probation.

On appeal, Chambers argued he should have been allowed to claim immunity under Section 4 of the medical marijuana law, which protects patients from prosecution if they possess no more than 2.5 ounces of "usable marijuana" and protects caregivers if they possess that amount for each registered patient.

Chambers said prosecutors should not have been allowed to consider the total weight of each brownie, but only the amount of THC present in each one. He also argued that the brownies qualified as a "mixture" containing the drug as defined under the law despite having been made with a THC-containing product called "Cannabutter" instead of with actual marijuana.

The appeals court dismissed this argument, saying the language of the statute narrowly defines "usable marijuana" as the leaves and flowers of the marijuana plant, and does not include extracts of the active ingredient.

"Consequently, an edible made with THC extracted from resin is excluded from the definition of 'usable marihuana.' Rather, under the plain language of the MMMA, the only 'mixture or preparation' that falls within the definition of 'usable marihuana' is a 'mixture or preparation' of 'the dried leaves and flowers of the marihuana plant,'" the court stated.

However, the court did determine that Chambers may be able to claim immunity under a separate provision of the law, which allows possession of marijuana in any amount "reasonably necessary to ensure the uninterrupted availability of marihuana for the purpose of treating or alleviating the patient’s serious or debilitating medical condition or symptoms."

Chambers did not attempt to make a claim under that provision at trial because the legal standard for claiming immunity under Section 8 of the law did not change until after his conviction. The appeals court chose to remand the case back to the trial court for a hearing to determine if Chambers has an immunity claim under the provision, and if he proves the provision applies, his conviction will be dismissed entirely.

Brian Smith is the statewide education and courts reporter for Mlive. Email him at bsmith11@mlive.com or follow him on Twitter or Facebook.