Tue, May 21

State seeks to block claims of constitutionality of marijuana growing

PHOENIX -- A constitutional right to control your own health care is not a right to grow your own medical marijuana, according to an attorney for the state's top health official.

Gregory Falls is asking Maricopa County Superior Court Judge Katherine Cooper to throw out claims by two men that they are constitutionally entitled to plant, grow and harvest the drug.

Falls said the fact that voters allowed those with a doctor's recommendation to obtain and use the drug does not give them the power to ignore other provisions of the 2010 medical marijuana law. And that includes the fact that anyone within 25 miles of a state-regulated dispensary has to obtain their drugs from that source.

The outcome of the legal fight has implications beyond the two men who filed suit.

A decision against state Health Director Will Humble would open the door to all of the state's nearly 40,000 medical marijuana patients each having the right to grow up to 12 plants of their own. And Humble said that would all occur without state oversight, including the ability to ensure that the drugs are used for the intended purposes.

"It turns into a free-for-all,' he said.

The 2010 initiative allows patients with certain specified medical conditions to obtain 2 1/2 ounces of marijuana every two weeks.

It also envisioned a network of dispensaries around the state. But the law also said anyone at least 25 miles from one of those dispensaries could grow their own -- up to 12 plants at any one time.

With no dispensaries until earlier this year, that gave grow privileges to anyone with a state-issued medical marijuana card. But when those annual cards expired, Humble checked his list of open dispensaries and rescinded those privileges for anyone within 25 miles.

That provoked the lawsuit last month. Attorney Michael Walz said the mandate to purchase form a dispensary violates a provision in a 2012 constitutional amendment prohibiting any law that requires anyone to "participate in any health care system.'

Falls said Walz is missing the point. He said nothing in the medical marijuana law requires anyone to participate in the medical marijuana program.

"Prohibiting someone from self-supplying controlled substances, even if the purpose is medical, is not the same as compelling someone to participate in a health care system,' Falls wrote. "Those who volunteer to participate must follow the terms of the Arizona Medical Marijuana Act and rules.'

Falls also pointed out that the medical marijuana law spells out that insurance companies are not required to provide coverage for a patient's medical marijuana.

He said that means those who crafted the law expected patients to pay for their drugs. And Falls said the entire lawsuit is based on the desire of the two men not to pay for health care services related to medical marijuana.

"They want to 'grow their own,' ' Falls wrote. "Maybe they also want to self-supply other controlled substances.'

Falls said voters legalized medical marijuana under the condition that the purchase and sale would be regulated for any patient who lives within "reasonable traveling distance' of a dispensary.

"Arizona voters accepted the concept of medical marijuana as long as marijuana is not grown freely through the state by any qualifying patient who wants the right to do so,' the attorney said. "If plaintiffs are not happy with the law, they are free to lobby for a change.'

Humble said the provision in the law denying self-grow to patients near dispensaries makes sense.

"When folks are growing their own plants, there's absolutely no way to prevent diversion of that marijuana to other than qualified patients,' he said.

Humble said the regulations his agency adopted have "robust inventory controls.'

"But when people are growing marijuana in their own houses -- 12 of their own plants, which is far more than most patients would ever need grown in hydroponics -- there's this big opportunity for diversion to folks that are not qualifying patients,' he said.

No date has been set for a hearing.