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5th Dec 2014

Concentrated cannabis or marijuana extract comes in many forms, commonly referred to as hashish, hash oil, honey oil, wax, shatter, phoenix tears, or one of several other names. This has been a hot-button issue in California lately as there is no clear law on the legality of manufacturing marijuana extracts for medical purposes. This is a very tricky area of the law, and it is important to obtain sound legal advice if you are interested in entering this industry. First, let’s be clear on what we’re talking about and dispel some myths.

Under California law, “marijuana” or “cannabis” refers not only to the plant or the flowers, but it also refers to “the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.”1 Right away we know then that “marijuana” includes resin extract. Additionally, “concentrated cannabis” is defined as “the separated resin, whether crude or purified, obtained from marijuana.”2 So under California law, concentrated cannabis is synonymous with extracted or “separated” resin, which is included within the definition of marijuana.

Normally, the possession of concentrated cannabis is a misdemeanor pursuant to Health & Safety Code section 11357(a).3 However, the Compassionate Use Act provides that the entirety of section 11357 does not apply to a “patient . . . who possesses marijuana” with a recommendation.4 And we know that concentrated cannabis is resin extract, which is just a kind of marijuana. So it seems fairly clear that a medical marijuana patient can legally possess concentrated cannabis, right?

Unfortunately, many law enforcement agencies and district attorneys have taken the flawed position that concentrated cannabis or certain kinds of concentrated cannabis are illegal under California law even for medical marijuana patients. Although it’s not entirely clear where these ideas originated, there has been a lot of media coverage of certain negative outcomes involving concentrated cannabis, such as kids getting sick from eating marijuana-infused edibles or residential explosions of so-called “hash oil extraction labs.” Additionally, there is a lack of clarity in the law as to how concentrated cannabis can be made legally by medical marijuana patients.

Under California law, the manufacturing or processing of marijuana by “chemical extraction” is illegal.5 But what is “chemical extraction?” In 2008, the California Court of Appeal in Los Angeles made clear in People v. Bergen that this section applies to making concentrated cannabis using butane as a solvent.6 However, at the same time the court told us that “resin . . . extracted from the marijuana plant through pressure, through a screening process, or by using an ice water method to produce the concentrated cannabis” would be considered “physical extraction” not covered by the manufacturing statute.7 The court also held that the section would not apply to “leaching the resin from the plant material by dissolving it in a nonchemical lipid extractor, such as butter.”8 In other words, making kief or bubble hash, or butter or oil infused with cannabis is not covered by the statute.

Unfortunately, Bergen is the only published opinion dealing with manufacturing concentrated cannabis. Naturally then, there are a number of unanswered questions. What about other flammable solvents such as ethane or methanol? What about consumer-grade alcohol such as Everclear or vodka? What about cutting edge methods that use liquid carbon dioxide? Although there are no clear answers, Bergen gives us some guidance.

There are potentially multiple ways to analyze the phrase “chemical extraction,” but Bergen seems primarily concerned with the nature of the substance used to extract the concentrated cannabis. The court spent considerable time discussing how the Legislature was concerned with volatile and toxic substances and noted that butane is flammable.9 Although it may be obvious to us that butane is a chemical in common usage, it is important to understand that its volatility is why the Bergen court considers butane a “chemical” under the statute. On the other hand, we also know from the discussion earlier that water, butter, and other lipids are not considered chemicals, even though they may extract concentrated cannabis by dissolving the resin. These substances are not volatile or toxic.

Thus, we can make some fairly simple observations about other methods of making concentrated cannabis. First, the use of any volatile solvent, such as methanol, ethane, propane, or acetone, is likely illegal under the statute because these substances are volatile and toxic. At the same time, the use of an inert gas like carbon dioxide is likely not covered by the statute because we all breathe carbon dioxide, and it is not flammable. It is less clear what the outcome would be for something like vodka or Everclear. While these substances can be flammable under pressure, they are designed for human consumption.

So what’s the take away from this discussion? Possession of concentrated cannabis is legal if you are a medical marijuana patient, and there are certain methods of making it that are legal as well. In any event, it is best to seek legal advice from someone knowledgeable and familiar with the law on manufacturing concentrated cannabis and the methods commonly used in the industry. There are legal ways to make concentrated cannabis under California law, but it can be tricky to understand the nuances of the law and the practical consequences of those nuances without expert advice.

I have litigated several concentrated cannabis cases and have obtained some very favorable results, which you can read more about on my criminal defense page. Additionally, I have advised many clients on business formation and structuring to comply with the law in this cutting edge field. So give me a call, set up a consultation, and I’ll use my expertise to help you become a successful member of the concentrated cannabis industry.

 

1. Health & Safety Code, section 11018.
2. Health & Safety Code, section 11006.5.
3. After the passage of Proposition 47 on November 4, 2014, possession of concentrated cannabis can no longer be charged as a felony. Health & Safety Code, section 11357(b)-(c) makes possession of other kinds of marijuana an infraction or a misdemeanor.
4. Health & Safety Code, section 11362.5(d).
5. Health & Safety Code, section 11379.6(a).
6. People v. Bergen (2008) 166 Cal.App.4th 161, 173-174 & fn. 6.
7. Id. at pp. 169.
8. Ibid.
9. Id. at pp. 170-173.

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