PHOENIX — State lawmakers are free to use fees paid by medical marijuana patients to operate programs to help get people off of other drugs, Attorney General Mark Brnovich has concluded.
But he said for these programs to be legal they probably have to promote marijuana as an alternative.
The formal opinion comes as the state Department of Health Services has accumulated nearly $44 million in its medical marijuana account, largely from the $150 a year the agency charges medical marijuana patients. So state Sen. Sylvia Allen, R-Snowflake, asked Brnovich if any of that can be used to help patients addicted to drugs.
Brnovich’s answer: Yes — with restrictions.
A 2010 law allows patients with specified medical conditions to obtain up to 2½ ounces of marijuana every two weeks. Brnovich said that shows a key purpose is to protect medical marijuana users from arrest and prosecution.
That law gives the Department of Health Services authority to set the fees. But it spells out that money collected can be used only to administer the program.
With income running twice as high as expenses, and state Health Director Cara Christ resisting calls to lower the fees, the money continues to accumulate.
The legal issue of what can be done with that money, said Brnovich, is the Voter Protection Act.
It prevents lawmakers from repealing programs that voters have approved through the ballot. But they can make changes that “further the purpose” of what voters approved.
And there’s the rub.
“There has to be a connection to medical marijuana,” said Ryan Anderson, a Brnovich spokesman.
He explained lawmakers are not free to decide that the funds paid by medical marijuana patients can now be used, without limit, to treat drug addiction. Only if the program furthers the purpose of what voters approved, Anderson said, could the account be tapped.
And even a program that says opioids are bad or offers treatment, he said, would have to somehow be linked to the decision by voters to legalize marijuana.
“You can’t just use the money to do a drug-addiction program if there’s not a tie somehow to the medical marijuana program or the medical value of medical marijuana,” Anderson said.
Even with those restrictions, though, the organization that crafted the 2010 Arizona law said medical marijuana users should not be financing programs to deal with problems people have with other illegal drugs, including those who are using marijuana illegally.
Mason Tvert, spokesman for the Marijuana Policy Project, said the whole purpose of the law — and the fees to fund it — is to ensure medical marijuana patients do not have to fear prosecution. And he said there may be some wiggle room in how to interpret that.
“But drug-addiction treatment does not seem to be one of those areas that would be unclear,” Tvert said.
“Funding this service on the backs of seriously ill patients who are already having to pay for their medicine out of pocket is wrong,” he said. “Given that the medical cannabis fund has a surplus, the state should lower the fees to ensure medical marijuana is an affordable treatment for seriously ill patients.”
Brnovich’s office is defending Christ in a lawsuit filed by two medical marijuana patients who want the courts to order her to reduce the $150 annual fee for the state-issued permit for patients to buy the drugs.
Attorney Sean Berberian contends that fee is illegally high because it is far more than needed to administer the program. And he argues that nothing in the law allows Christ to simply bank the proceeds.
Berberian also said both Gov. Doug Ducey and predecessor Jan Brewer directed the health department to keep the fees as high as possible to deter patients from getting the drug, a charge Ducey’s office has denied.
In a ruling last year, Maricopa County Superior Court Judge Jo Lynn Gentry did not dispute the claim that the state is collecting far more than its needs. But the judge said it’s not up to her to force the state to lower the fees.
That lawsuit is awaiting Court of Appeals review.
