PHOENIX — Arguing that medical marijuana has been the most effective treatment for their son’s seizure disorder, the parents of a 5-year-old boy filed a lawsuit here on Monday to force state officials to include marijuana extracts — oil-like resins with very low levels of the psychoactive ingredient THC — as a legal product under the state’s medical marijuana act.
As it stands, the act, approved by voters in 2010, allows patients to use “any mixture or preparation” made with dried marijuana flowers, like brownies. The boy’s parents, Jacob and Jennifer Welton, have been crushing the flowers and mixing them into applesauce, which they say has become difficult for the boy to ingest after brain surgery last year compromised his ability to eat. They do not want to buy the extract, found on the black market, for fear of being arrested.
“We’re not criminals,” Ms. Welton, 30, an enrollment adviser at the University of Phoenix, said in an interview. “We just want what’s best for our son.”
The Weltons’ legal action opens a new front on the fight over legalizing marijuana for medicinal use across the country, focusing on very sick children to highlight its potential benefits.
Arizona’s statute has no age restrictions; patients under 18 can use medical marijuana as long as a parent or legal guardian is told of its potential risks and is in charge of buying and administering it, among other requirements.
But the Maricopa County attorney, Bill Montgomery, has said that patients can be criminally prosecuted for using extracts and other products that do not meet the definition of “cannabis” under the state’s criminal code, which treats resin extracted from marijuana as an illegal narcotic. The couple lists Mr. Montgomery, Gov. Jan Brewer and Will Humble, the director of the Arizona Department of Health Services, as defendants in its lawsuit.
“We’re taking a proactive measure,” said Emma A. Andersson of the American Civil Liberties Union’s Criminal Law Reform Project and the Weltons’ lead lawyer. “Rather than waiting for these parents to be criminally prosecuted, we’re asking the courts to clarify what the medical marijuana law is.”
The Weltons’ approach has already scored victories and forged alliances in unlikely corners. In August, Gov. Chris Christie of New Jersey, which has one of the nation’s strictest marijuana statutes, allowed dispensaries to provide edible products made with marijuana leaves or extract to children. On Monday in Michigan, State Representative Mike Shirkey, a Republican, introduced legislation that would add edible products and extracts to the list of products deemed “usable” under the state’s medical marijuana law, approved by voters in 2008.
Utah does not have a medical marijuana program, but a Republican legislator there, State Representative Gage Froerer, plans to propose a bill allowing the use of extracts to treat children.
In an interview, Mr. Froerer said, “With these low THC levels and the research I found coming from Colorado” and other states where the extracts are legal, “you ask yourself, if this was one of your kids, would you want this product available?”
Through representatives, the defendants declined to comment while litigation was pending. Still, in a recent blog post, Mr. Humble talked about the confusion caused by the different definitions of marijuana and cannabis in the state’s medical marijuana law and criminal code, saying that patients who use medical marijuana and the dispensaries that sell to them “may be exposed to criminal prosecution” if they have “resin extracted from any part” of a marijuana plant.
Mr. Montgomery, in a wide-ranging news conference last month, said one of his concerns was that the medical marijuana law sets limits only on dispensing dried marijuana — 2.5 ounces per patient every 14 days — making it hard to regulate the sale of resins and oils.
Last week, the Food and Drug Administration approved the country’s first studies on the marijuana compound cannabidiol, a nonpsychoactive marijuana component, as an antiseizure medication. Some scientists believe the compound quiets the electrical and chemical activities in the brain that trigger seizures. Extracts are often heavy on cannabidiol, with a negligible amount of THC.
The parents of Zander, the 5-year-old boy here, decided to request medical marijuana for him after watching a CNN documentary featuring the story of a girl from Colorado whose seizures fell to a handful over eight months from about 300 per week. At that time, Zander, who has cortical dysplasia, a genetic defect, was facing the prospect of a third brain surgery.
His daily seizures, which started when he was 9 months old, had made him unresponsive to emotional and physical prompts, Ms. Welton said. He was first given medical marijuana seven weeks ago, and since then he has been able to stand straighter, stack blocks and walk backward for the first time.
Ms. Welton said extracts, in addition to being easier to ingest, can be taken in more precise doses than the plant.
“We tried so many other regular pharmaceutical medications. They don’t have the same stigma, but they didn’t help him and sometimes they made him worse,” said Ms. Welton, who has two other children. “I wouldn’t want any of my other kids using marijuana. But this is Zander’s medication, and for the first time, I feel like there’s hope for him.”
By Fernanda Santos, NY Times, 10/28/13
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