Medical cannabis and Pennsylvania’s Paraphernalia law – what is a patient to do?

When the General Assembly enacted the medical cannabis law it did not specifically address the issue of whether Pennsylvania patients were legally permitted to use devices and instruments necessary to consume medical cannabis. It included a somewhat vague provision in Section 802(a)(4) of the Act that states:

“A dispensary may sell medical devices and instruments which are needed to administer medical marijuana under this act.”

The question, of course, remains “what if the dispensary does not sell devices and instruments needed to administer medical cannabis?  Is a patient legally permitted to purchase said devices and instruments from a non-dispensary affiliated retail glass shop?  Or via an online retailer?

At least one local District Attorney’s Office has taken the position that a patient may only lawfully possess devices and instruments purchased from a licensed dispensary, and local patients have found themselves charged under Pennsylvania’s Paraphernalia statute.

What is a patient to do?

Pennsylvania’s Paraphernalia statute is set forth at 35 Pa.C.S.A. §780-113(a)(32):

“(32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act. (Emphasis added).”

The term “controlled substance” in the statute merits special attention.  Is “medical marijuana” a controlled substance under Pennsylvania law?  There are three reasons to conclude this medical marijuana/medical cannabis is NOT a controlled substance and that patients are lawfully permitted to use devices and instruments that were not purchased at a dispensary.

The first comes from the Act itself.  Section 2101 of the medical cannabis act sets forth:

“The growth, processing, manufacture, acquisition, transportation, sale, dispensing, distribution, possession and consumption of medical marijuana permitted under this act shall not be deemed to be a violation of . . . The Controlled Substance, Drug, Device and Cosmetic Act. If a provision of the Controlled Substance, Drug, Device and Cosmetic Act relating to marijuana conflicts with a provision of this act, this act shall take precedence.”

According to §2101 (and therefore the General Assembly) consumption of medical cannabis is NOT a violation of the Controlled Substances Act.  Further, any conflict between the medical cannabis act and the Controlled Substances Act must be resolved in favor of the medical cannabis act.

The second comes from the Pennsylvania Superior Court in Commonwealth v. JezziJezzi did not involve medical cannabis, but was rather a Constitutional challenge to cannabis’ Schedule I classification as the passage of PA’s medical cannabis law clearly demonstrates that cannabis has medical efficacy and cannot therefore fit the definition of a Schedule I Controlled Substance.[1]  In Jezzi the Superior Court distinguished “medical marijuana” and “marijuana”.  It said:

“Regarding Appellant’s equal protection challenge, we first observe that medical marijuana is not listed in the CSA as a Schedule I substance, only marijuana is listed. The MMA provides a very limited and controlled vehicle for the legal use of medical marijuana by persons qualified under the MMA. See 35 P.S. § 10231.102(3). Outside the MMA, marijuana remains a prohibited schedule I controlled substance for the general citizenry who are unqualified under the MMA”  Commonwealth v. Jezzi, 208 A.3d 1105 (2019).

The third comes from Pennsylvania’s “principles of statutory construction”.  The relevant statute is found at 1 Pa.C.S.A. §1922(1) which creates a presumption that:

“That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.”

The General Assembly made medical cannabis available to Pennsylvanians with qualifying conditions.  Denying patients the ability to actually use legal medical cannabis products by prohibiting the use of devices and instruments to consume said products would indeed produce an absurd result.

The penalty for possessing illegal paraphernalia is up to a year of incarceration and a $2,500.00 fine.  The stakes for patients are high.  Absent legislative action more and more patients may face arrest and prosecution for paraphernalia.  The remedy may lie with the Courts, but for now this remains yet another grey area for Pennsylvania’s 250,000+ medical cannabis patient population.

Patrick K. Nightingale, Esq.

[1] Title 35, section 780-104(1)(iv) defines Marijuana as a Schedule I controlled substance.  Section 1 defines a Schedule I controlled substance as a substance with “a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.”

 

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