Can a medical marijuana cardholder in Oregon also grow and possess recreational marijuana on top of their medical limits?
Plain-English summary
After Oregon voters passed Measure 91 in 2014 legalizing recreational marijuana, the question quickly arose: could a person who already had a medical marijuana card add recreational plants and product on top of their medical-program possession limits? The Oregon Health Authority, the Oregon Liquor Control Commission, and the Oregon State Police asked the AG for a legal answer to this "stacking" question.
Attorney General Ellen F. Rosenblum's office concluded:
- Plants: Yes. A medical cardholder over 21 could grow and possess medical plants up to the medical limit AND additional recreational homegrown plants up to the recreational limit at the same time. Nothing in Oregon's marijuana laws prohibited it. The Med Mj Act and Rec Mj Laws each contained savings clauses disclaiming that one law affects the other.
- Usable marijuana: Yes. Same logic. A cardholder could possess medical and recreational usable marijuana simultaneously.
- Products, concentrates, and extracts: No. The Controlled Substances Act sets caps on possession of marijuana products, concentrates, and extracts that apply across the board, regardless of medical or recreational source. The medical program had no maximum on products, but the CSA limits override.
The opinion was effectively guidance to law enforcement and regulators on what to count and what to charge under each cumulative scenario.
Currency note
This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Historical summary
What "stacking" meant
A 21-year-old medical marijuana patient registered as their own grower could, under the medical program, possess six mature plants. The recreational program at the time allowed any adult to keep up to four homegrown plants. The question was whether the same person could keep ten plants total (six medical plus four recreational), or whether the law required them to choose one regime.
How the AG reasoned through it
The AG worked through three statutory frameworks: the Recreational Marijuana Laws (Measure 91 plus 2015 and 2016 amendments codified in ORS 475B), the Medical Marijuana Act, and the Controlled Substances Act. For plants and usable marijuana, the AG noted that both the Rec Mj Laws and the Med Mj Act contained explicit savings clauses, each disclaiming that the new statute affects the rights or obligations under the other. The CSA contained an exemption for persons authorized under the Med Mj Act, and decriminalized possession up to the recreational homegrown limits. Stacking on plants and usable marijuana fell into the gap covered by both exemptions.
For products, concentrates, and extracts, the analysis cut the other way. The Med Mj Act did not set a maximum amount of medical product a patient could possess. The Rec Mj Laws allowed homegrown adult possession of certain solid and liquid products (edibles, infusions, tinctures) but explicitly excluded extracts. The CSA, however, set general possession caps that applied to all marijuana products, medical or recreational. Stacking would have allowed a person to exceed those CSA caps via the medical exemption, which the legislative record did not authorize. So the AG concluded stacking products was not permitted.
What this meant at the time
Patient/growers gained clarity that the recreational legalization did not override the medical program; it ran alongside it. Law enforcement understood that finding ten plants (six medical, four recreational) at a registered grow site was not by itself probable cause for an offense, but exceeding the CSA's product caps remained chargeable.
Common questions
Q: What was Measure 91?
A: A 2014 Oregon ballot initiative that legalized recreational marijuana for adults 21 and over and created a regulatory framework for the licensed production, processing, wholesaling, and retail sale of recreational marijuana.
Q: What did "stacking" mean in practice?
A: A medical patient (or designated grower) cumulatively possessing both medical-program limits and adult recreational limits. The AG's opinion permitted stacking for plants and usable marijuana, but not for products, concentrates, and extracts.
Q: Was an extract ever a permissible homegrown product?
A: No. The Rec Mj Laws expressly excluded extracts from homegrown adult possession. Extracts could be obtained through licensed retailers, subject to CSA caps.
Q: Did this opinion address commercial licensees?
A: No. The opinion was focused on personal possession by patients, growers, and adult homegrowers. Commercial licensees operate under separate license-specific frameworks.
Background and statutory framework
Measure 91 (2014) legalized adult recreational marijuana and created the OLCC-administered licensing structure for production and retail. The 2015 Legislature passed HB 3400 making substantial amendments. The 2016 Legislature followed with HB 4014, SB 1511, and SB 1598. Together these created ORS Chapter 475B as the unified cannabis regulation chapter. The Med Mj Act (codified at ORS 475B.400-525) operated alongside the Rec Mj Laws (ORS 475B.005-399). The Controlled Substances Act, ORS 475, retained background criminal authority but with carve-outs for both regulated programs.
The AG used the standard PGE/Gaines statutory-interpretation framework: text, context, and legislative history, treating the voter-initiated provisions of Measure 91 the same as legislatively enacted statutes per Burke v. State ex rel. DLCD.
Citations and references
Statutes:
- ORS 475B (Cannabis Regulation) (post-Measure 91 unified chapter)
- Measure 91 (2014) (recreational marijuana initiative)
- HB 3400 (2015) (major implementing legislation)
Cases:
- PGE v. BOLI, 317 Or 606 (1993)
- State v. Gaines, 346 Or 160 (2009)
- Burke v. State ex rel. DLCD, 352 Or 428 (2012)
Source
- Index page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/2016/07/op2016-2.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
ELLEN F. ROSENBLUM FREDERICK M. BOSS
Attomey General Deputy Attorney General
DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION
July 20, 2016
Andre Ourso Captain Eric Davenport
Medical Marijuana Program Manager Professional Standards
Public Health Division Superintendent’s Office
Oregon Health Authority Oregon State Police
800 NE Oregon Street, Suite 930 255 Capitol Street NE, 4" Floor
Portland, OR 97232 Salem, OR 97310
Jesse Sweet
Senior Policy Advisor
Administration
Oregon Liquor Control Commission
9079 SE McLoughlin Blvd
Portland, OR 97222
Re: Opinion Request OP-2016-2
Dear Mr. Ourso, Mr. Sweet and Capt. Davenport:
You have asked whether a person may possess medical and recreational marijuana plants
at the same time. You have also asked whether a person may possess usable marijuana or
marijuana products, concentrates or extracts made from medical and recreational marijuana
plants at the same time. We refer to the cumulative possession of medical and recreational
plants, usable marijuana, marijuana products, concentrates and extracts as “stacking”. Your
questions and our short answers are set out below, followed by our analysis.
FIRST QUESTION PRESENTED
May a person who is permitted to possess and produce marijuana plants under the Oregon
Medical Marijuana Act (“Med Mj Act”) stack medical and recreational marijuana plants? For
example, Bob is a 21-year-old medical marijuana patient” who has registered himself as a grower
and his residence as his grow-site with the Oregon Health Authority (“OHA”). May he possess six
medical marijuana plants and four recreational marijuana plants at his residence at the same time?
SHORT ANSWER
Yes, a person who may legally possess and produce medical marijuana plants may
“stack” medical and recreational marijuana plants. There is nothing in Oregon’s marijuana laws
that would prohibit a person from “stacking” marijuana plants. The prohibition on marijuana
manufacture in the Oregon Controlled Substances Act (CSA) does not apply to persons
1162 Court Street NE, Salem, OR 97301-4096
Telephone: (503) 947-4540 Fax: (503) 378-3784 TTY: (503) 378-5938 www.doj.state.or.us
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
Page 2
authorized to possess marijuana under the Med Mj Act, and the CSA allows possession of
marijuana plants in the same number as the new homegrown plant limits allowed under the new
recreational marijuana law. Additionally, as explained in more detail below, the new
recreational marijuana laws and the Med Mj Act both contain specific provisions disclaiming
any intent that one law affects the other.
SECOND QUESTION PRESENTED
May a person permitted to possess usable marijuana under the Med Mj Act stack medical
and recreational usable marijuana?
SHORT ANSWER
Yes. As with plants, there is nothing in Oregon’s marijuana laws that would prohibit
“stacking” usable marijuana. The prohibition on marijuana possession in the CSA does not apply
to persons authorized to possess marijuana under the Med Mj Act, and the CSA de-criminalizes
the possession of a certain number of plants and certain amount of usable marijuana. As noted
above and as will be explained in more detail below, the new recreational marijuana laws and the
Med Mj Act both contain specific provisions disclaiming any intent that one law affects the other.
THIRD QUESTION PRESENTED
May a medical marijuana patient stack medical and recreational marijuana products,
concentrates or extracts?
SHORT ANSWER
No. The Med Mj Act does not set a maximum or minimum amount of a medical
marijuana product, concentrate or extract that a person may possess. The new recreational
marijuana law allows a person to possess some homegrown marijuana products or concentrates in
solid and liquid form (e.g., edibles, infusions and tinctures), but not marijuana extracts. The CSA,
on the other hand, limits the amount of certain marijuana products that a person may possess,
whether the marijuana products are medical or recreational, homegrown or purchased from a retail
licensee. Therefore, there is no basis for allowing the stacking of marijuana products.
ANALYSIS
To answer your questions we have reviewed three areas of Oregon law relating to
marijuana. The voters passed Measure 91 in November of 2014." Measure 91 provides for the
creation of a legal, regulated, and taxed marijuana industry in Oregon. As such it is far-reaching,
affecting many different statutory schemes including, indirectly, the Med Mj Act and more
directly, the CSA. The 2015 Legislature substantially amended and added to Measure 91, the
Med Mj Act and the CSA and made significant changes to other related laws, primarily through
HB 3400. In 2016, the Legislature passed a number of marijuana related bills - HB 4014, SB
1511 and SB 1598 — that have some bearing on this analysis.
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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Measure 91, HB 3400 and other marijuana related provisions passed during the 2015
legislative session have now been codified in ORS 475B, a new chapter covering cannabis
regulation. The recreational marijuana provisions are generally found in ORS 475B.005 to
475B.399 and, for purposes of this advice, we refer to these provisions collectively as the
“Rec Mj Laws”. The medical marijuana provisions are generally found in ORS 475B.400 to
475B.525 and we refer to these provisions as the “Med Mj Act”. The-criminal provisions are
generally found in ORS 475 under the Uniform Controlled Substances Act and we refer to these
provisions as the “CSA”. To the extent that the 2016 legislation, that has not yet been codified,
plays into the analysis, we will call that out. We do, of course, provide precise citations to the
relevant provisions in the endnotes.
Your questions require us to interpret the marijuana statutes. Our goal in interpreting an
Oregon statute is to determine the intent of the legislature. PGE v. Bureau of Labor and
Industries (“PGE”), 317 Or 606, 610, 859 P2d 1143 (1993). We start by examining the text and
context of the statute, with the text being the best evidence of legislative intent. Id. In
interpreting the text, we apply statutory and judicial rules of construction that “bear directly on
how to read the text,” such as “not to insert what has been omitted, or omit what has been
inserted,” and that “words of common usage typically should be given their plain, natural and
ordinary meaning.” Id. at 611; ORS 174.010. Even if the legislature’s intent seems clear from
text and context, we may examine and give limited consideration to legislative history, to
““]}uminate” that intent or to show “that superficially clear language actually is not so plain at all
— that is, that there is a kind of latent ambiguity in the statute.” State v. Gaines, 346 Or 160, 172-
73, 206 P3d 1042 (2009). A statute's context “includes other provisions of the same statute and
other related statutes, as well as the preexisting common law and the statutory framework within
which the law was enacted|.]” Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998)
(internal citations omitted). We interpret ballot measures in the same way. Burke v. State ex.
rel. DLCD, 352 Or 428, 432, 290 P3d 790, 792 (2012) (Court will apply the same method of
statutory analysis to a voter initiative as it would to a legislatively enacted statute).
It is worth noting at the outset that only a person who can lawfully possess medical
marijuana in some form, and who is over 21, could “stack” medical and recreational marijuana.
If a person does not have a medical marijuana card, or is not a designated caregiver or grower for
a person with a medical marijuana card, then no stacking issue can arise as to that person.
- The laws that control the regulation and legalization of recreational and medical
marijuana
a. The Rec Mj Laws
The Rec Mj Laws establish a regulatory framework for the production, processing,
wholesaling and retail sale of recreational marijuana and authorizes OLCC to regulate the
licensing for these activities.” OLCC is charged with licensing marijuana producers, processors
(makers of, for example, concentrates, extracts, edibles), wholesalers, retailers and laboratories.
The Rec Mj Laws also allows a person 21 or over, without an OLCC license, to produce, make,
possess, and store marijuana items in certain amounts.”
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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The amount allowed is not calculated per person, but rather per household. So, per
household (assuming the household contains at least one person 21 or over) the following is
permitted:
e Production or storage of up to 4 homegrown marijuana plants.
Possession or storage of up to 8 ounces of usable marijuana, i.e. the dried leaves and
flowers of the marijuana plant.”
e Making, processing, possession or storage of up to 16 solid ounces of cannabinoid
products.
e Making, processing, possession or storage of up to 72 liquid ounces of cannabinoid
products.
e Making, processing, possession or storage of up to 16 ounces of cannabinoid
concentrates.
e Possession of up to 1 ounce of cannabinoid extracts purchased from a licensed retailer
or registered dispensary.
“Homegrown” means grown by a person 21 or over for noncommercial purposes.”
A “household” refers to the “housing unit” where a person lives and produces, possesses or
stores homegrown and homemade marijuana plants, usable marijuana, products or concentrates.*!
By way of example, if you are 21 or over and have 8 ounces of usable marijuana from your
homegrown marijuana plants at your household, it would be illegal for you to purchase an ounce
of usable marijuana at an OLCC retailer and bring that home because you would be over the
personal possession limits.
b. The Med Mj Act
The Med Mj Act addresses possession limits differently than the Rec Mj Laws in two
ways. First, the Med Mj Act creates possession limits for mature plants and usable marijuana,
but not products, concentrates or extracts. Second, the Med Mj Act ties the amount allowed to
the medical marijuana patient herself, not to her residence. To illustrate, a family living
together at a residence may have only four recreational marijuana plants regardless of how
many family members are 21 or over; whereas, a family with two medical marijuana patients
growing for themselves may have twelve medical marijuana plants at their residence, six for
each patient.
Because the Med Mj Act was designed to allow marijuana use by people with debilitating
medical conditions who might be too ill to care for themselves or produce their own marijuana, the
act allows a patient to designate both a caregiver and a grower. Possession limits related to both
plants and usable marijuana are ultimately tied to the patient, but if the patient has designated a
caregiver then the caregiver may stand in the shoes of the patient when it comes to the possession
limits in the Med Mj Act. A patient and her caregiver may jointly possess:
e 6 mature marijuana plants.”
e 24 ounces of usable marijuana.”
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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The Med Mj Act is silent as to possession limits for immature marijuana plants, medical
marijuana products, concentrates or extracts for medical use.
A patient may designate a grower and a grow site address when she registers for a
medical marijuana card.” The patient may designate herself as the grower, her caregiver or a
third party as a grower.” The grow site can be the patient, caregiver, or grower’s residence
(household), or can be at an address that is not the designated grower’s residence (household).'*”
The Med Mj Act allows designated growers to grow for up to four patients with a limit of
up to six mature plants per patient.’ There are overall plant limits for medical marijuana grow
site addresses, depending on where the grow site is and how long the grower has been a medical
marijuana grower.”
A medical marijuana grower producing marijuana at a grow site address with over
12 mature plants or at a grow site address that is not a patient’s residence may possess:
e For indoor growers, up to 6 pounds of usable marijuana per mature plant.
e For outdoor growers, up to 12 pounds of usable marijuana per mature plant.'”
There is no usable marijuana possession limit in the Med Mj Act for a medical marijuana grower
producing marijuana at a patient’s residence if that grow site has fewer than 12 plants.’”
c. The CSA — the criminal law related to marijuana
The CSA provides that a person 21 or over, who is not an OLCC licensee or a licensee’s
representative, may be subject to criminal penalties if she possesses:
More than 4 marijuana plants.
More than | ounce of usable marijuana in a public place.
More than 8 ounces of usable marijuana.
More than 16 ounces of cannabinoid products in solid form or cannabinoid
concentrates.
e More than 72 ounces of cannabinoid products in liquid form.
e More than 1 ounce of cannabinoid extract.
e A cannabinoid extract that was not purchased from a marijuana retailer licensed by
oLcc.'*
Law enforcement has authority to seize usable marijuana and marijuana products in a
person’s possession or on the premises where he is arrested “that is apparently being used in
violation” of state law pertaining to recreational marijuana licensing and exceptions to the
licensing requirements.”
The CSA does not distinguish between the sources of the recreational marijuana, i.e.
homegrown or purchased from a licensed retailer. Rather it contains broader, less specific
terminology including “usable marijuana”, “cannabinoid products” in solid or liquid form,
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
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“cannabinoid concentrates” and “cannabinoid extracts”.2” There is no reference in the CSA or in
the statutory definitions it relies on to homegrown, commercial, or as discussed below, medical.7"
For example, a person cannot possess at the same time eight ounces of homegrown recreational
usable marijuana in addition to eight ounces of usable marijuana that he purchased from a licensed
retailer. The CSA only allows for the possession of eight ounces of usable marijuana, regardless
of its source.
The CSA does not apply as broadly to possession of medical marijuana because the Med
Mj Act specifically exempts possession of medical marijuana under certain circumstances from
criminal liability. Under the Med Mj Act, a patient, caregiver or designated grower is exempt
from criminal liability if he is found to possess medical marijuana plants and usable marijuana.
The exemption applies as long as the exempt person does not consume in a public place, drive
while intoxicated, give medical marijuana to a person that is not entitled to receive it, and is within
the possession limits established by the Med Mj Act.”*’ As we stated earlier, however, Med Mj
Act does not establish a permissible limit for the possession of marijuana products, concentrates
and extracts by a patient, caregiver or designated grower.” Therefore the default possession
limits for these items is what is permitted to any individual 21 or over under the CSA.
22/
We conclude that the CSA creates criminal liability for any person over 21 who is not an
OLCC licensee and is in possession of more than the following:
e Plants in excess of the number allowed under the Rec Mj Laws and Med Mj Act
combined for that person and their situation (explained in more detail below).7"
e 1 ounce of usable marijuana in a public place.
8 ounces of usable recreational (homegrown or purchased) marijuana in a non-public
place.
24 ounces of usable medical marijuana if possessed lawfully under the Med Mj Act.
16 ounces of cannabinoid products in solid form or cannabinoid concentrates.
72 ounces of cannabinoid products in liquid form.
1 ounce of cannabinoid extract, or any amount of an extract not purchased from an
OLCC licensee or transferred by a medical marijuana dispensary.
- Stacking of plants and usable marijuana is allowed and stacking of products,
concentrates and extracts is not.
We address each form of marijuana individually to answer the question of whether it can
be stacked.
a. Marijuana Plants
The Rec Mj Laws and the Med Mj Act contain express provisions that allow a person to
possess a specific number of recreational or medical marijuana plants. The Rec Mj Laws set a
maximum number of homegrown plants per household, and says nothing about who may or may
not be in that household. The Rec Mj Laws make no mention of medical marijuana cardholders.
_By contrast, the Med Mj Act does reference “who” may possess marijuana plants — the patient,
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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caregiver or designated producer, but there is no restriction on “who” may be in the residence or
grow-site where the marijuana is produced. Neither Act contains text mandating that a person
choose between recreational or medical marijuana. The limits are mutually exclusive and are not
dependent in any way on the number of plants that a person may possess under either act.
The absence of any connection between the plant limits in the Rec Mj Laws and the Med
Mj Act is intentional. Measure 9lexpressly provides that it is not intended to amend or affect the
Med Mj Act or affect persons acting within the scope of the Med Mj Act. The Med Mj Act
likewise provides that it is “not intended to change current civil and criminal laws governing the
use of marijuana for nonmedical purposes.””” The net result is that limits on possession amounts
for medical and recreational marijuana are wholly independent of each other — in effect, allowing
stacking.
Nothing in the CSA expressly prohibits stacking. The CSA criminalizes possession of
more plants than would be allowed under the Rec Mj Laws.”*’ But it does not impose the same
type of express restriction on possession of medical marijuana plants — both because the CSA is
silent as to possession of medical marijuana plants and the Med Mj Act expressly exempts
possession, delivery or manufacture of medical marijuana items from criminal liability in most
cases.”” Nothing in the CSA prohibits a cardholder from possessing four recreational plants per
household in addition to six medical plants.
There may be a flaw in the statutory structure related to immature medical marijuana
plants. Prior to the 2015 legislation, medical marijuana growers were limited to 18 immature
plants and 6 mature plants.*” The 2015 legislature eliminated the limit on immature plants —
leaving, by implication, no limit on immature plants.>” However, the exemption from criminal
liability for authorized medical marijuana program participants is limited to possession, delivery
or manufacture of marijuana that is “described in ORS 475B.400 to 475B.525.” ORS 475B.515.
When the legislature eliminated the limit on immature medical marijuana plants, it also
eliminated an express “description” of immature plants as plants that may be possessed. The
Legislature’s amendment arguably creates a potential for criminal liability.
We believe that a stronger argument can be made that a grower of immature plants is
exempt from criminal liability because “immature” plants are inferentially described in the Med Mj
Act. Numerous references are made to the authorized ownership, possession, transfer and reporting
of immature plants and seedlings.” Furthermore, the legislative history of HB 3400 contains at
least some testimony that proponents of Ballot Measure 91 asked the Joint Committee to remove
limits on immature plants and seedlings because of the realities of agricultural production.3” To
produce different strains of marijuana, a grower would need multiple immature plants, making it
extremely difficult to cross-breed if constrained by a cap on immature plants.*“’ The context of HB
3400 and the legislative history strongly indicates that the legislature, in deleting the reference to
immature plants, intended this change to help medical marijuana growers, not expose them to
criminal liability. We believe the potential for criminal liability is extremely low.
We conclude that stacking of marijuana plants for an individual who is authorized to
possess plants under the Med Mj Act is permissible under the CSA, the Rec Mj Laws and Med Mj
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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Act at certain locations. A medical marijuana growsite properly registered under the Med Mj Act
that is also a household (residence) of an individual may have the maximum number of allowable
medical marijuana plants and four homegrown plants per residence allowed by the Rec Mj Laws.
b. Usable Marijuana
The CSA limits the amount of “usable marijuana” a person over 21 may possess to one
ounce in a public place and eight ounces in any other location.” The Rec Mj Laws allow
possession of eight ounces of homegrown usable marijuana per household.*” The Med Mj Act
allows a patient (or his designated caregiver) possession of 24 ounces of usable marijuana.>”
The limitation in the CSA precluding possession of usable marijuana in a public place
applies both to homegrown or purchased recreational usable marijuana and to medical usable
marijuana.** But, as we discussed above, a patient, or a designated caregiver in possession of
usable medical marijuana outside of a public place, is exempt from criminal liability.>”
Therefore, the CSA cannot criminalize a patient’s possession of usable medical marijuana of up to
24 ounces.*” In other words, a patient could possess at his household 24 ounces of medical usable
marijuana plus another eight ounces of recreational usable marijuana, i.e. stacking usable .
marijuana is allowed.
The Med Mj Act and the Rec Mj Laws do not contain any language that prohibits
stacking usable marijuana allowances. The Rec Mj Laws do not prohibit medical marijuana
patients from also possessing recreational usable marijuana and the Med Mj Act does not limit a
patient or designated caregiver to possession of only medical marijuana. Finally, the expressly
stated limitation in each Act — to not impact the rights afforded under the other Act — also applies
to possession of recreational and medical usable marijuana. Our conclusion is that stacking of
usable marijuana is allowed under the Med Mj Act and the Rec Mj Laws, and is not prohibited
by the CSA.
Cc. Marijuana Products, Concentrates and Extracts
We address marijuana products (in solid form, liquid form, concentrates and extracts)
collectively because we conclude that they are treated the same for purposes of stacking.
The CSA prohibits possession of:
e More than 16 ounces of cannabinoid products in solid form or cannabinoid
concentrates.
e More than 72 ounces of cannabinoid products in liquid form.
e More than 1 ounce of cannabinoid extract.
Any cannabinoid extract not produced by an OLCC licensee or an OHA registered
processor.”
The Rec Mj Laws, as discussed above, exempts persons from the licensing requirements
in the Rec Mj Laws and essentially allows home production of various marijuana items as long
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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as the amount stored remains small. Under the licensing exemption provision an individual may
possess homemade versions of the same products that the CSA allows, except for extracts, as
long as they do not exceed the following amounts:
e 16 solid ounces of homemade cannabinoid products at a household.
e 72 liquid ounces of homemade cannabinoid products at a household.
e 16 ounces of homemade cannabinoid concentrate at a household.”
The Med Mj Act, on the other hand, is silent as to the amount of cannabinoid products,
concentrates and extracts that a person may possess.
That silence means that there can be no “stacking” of marijuana products. The issue of
stacking can only arise where the law authorizes both medical and recreational forms of the same
thing. Since the CSA does not distinguish between medical and recreational marijuana products
and the Med Mj Act does not authorize possession of a specific amount of medical marijuana
products, the only marijuana products that an individual can possess are those not prohibited by
the CSA.
The CSA prohibits stacking of marijuana products by setting the absolute maximum
quantity of marijuana products that any individual may possess, regardless of whether the
product is homegrown, purchased from a licensed retailer, or transferred by a medical marijuana
processor or dispensary.**
To the extent the Med Mj Act allows possession or production of marijuana products,
those items may not be stacked with recreational forms of the same items by any individual. An
individual could, however, possess a mix of homegrown and purchased licensed recreational and
medical marijuana products, with the exception of extracts, so long as the total amount possessed
does not exceed the limits in the CSA.’
- Legislative History
We have reviewed the legislative history of the relevant sections of the Rec Mj Laws, the
Med Mj Act and the CSA. We find no written or oral testimony that indicates that the legislature
even considered the idea of stacking by a patient. The legislature may have been concerned with
setting defined limits within the Med Mj Act, but only Representative Olson mentioned that it
was intended to fix a “black hole” within the medical marijuana program.*” He did not explain
on the record what he meant by a “black hole.” In any event, any mention of the overall criminal
limits was made in the context of Rec Mj Laws without any reference to the Med Mj Act.
CONCLUSION
An individual, authorized under the Med Mj Act to grow marijuana, and who does so at
his home, may stack his mature medical marijuana plants with recreational marijuana plants. In
other words, Bob, our 21-year-old medical marijuana patient who is authorized to grow his own
marijuana and has designated his home as a grow-site, may possess six mature medical
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
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marijuana plants and four recreational marijuana plants. The same conclusion applies to the
usable marijuana derived from those plants —- Bob may possess at the same time 24 ounces of
usable medical marijuana and eight ounces of usable recreational marijuana without risk of
criminal liability.
Bob may not, however, stack marijuana products that are referred to in statute as
cannabinoid products, cannabinoid concentrates and cannabinoid extracts. If Bob possesses a
total of these marijuana products that exceed the amount set forth in the CSA, he has committed
a crime, regardless of whether the product is recreational or medical.
General Counsel Division
SA W:nog/DM7542327
c via email only: Judy Giers, DOJ
’ Amy Alpaugh, DOJ
Herb Lovejoy, DOJ
Stacy Posegate, DOJ
Shannon O’Fallon, DOJ
Heather Vogelsong, DOJ
” We note that persons licensed by OLCC or registered with OHA are subject to the rules
governing those licenses or registrations that might relate to “stacking” issues.
*/ Medical Marijuana Act uses the more unwieldy term “registry identification cardholder.”
ORS 475B.410(22).
77 Oregon Laws 2015, chapter 1.
“ORS 475B.005 to 475B.235.
57 ORS 475B.245 as amended by Oregon Laws 2016, chapter 24, section 36.
ORS 475B.015(29) (defining “usable marijuana” for the Rec Mj Act).
7 ORS 475B.015(8).
ORS 475B.015(9) and (10).
- ORS 475B.428(1).
1’ ORS 475B.430(1).
1V ORS 475B.415(2)(f); ORS 475B.420(2).
12/ Id
3’ ORS 475B.420(2)(c).
™ ORS 475B.428.
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‘5’ For growers who were not first registered under the Med Mj Act before December 31, 2014, a
grow site address can have the following number of plants:
e Within city limits in a residential zone: 12
e Within city limits but outside a residential zone or outside city limits: 24.
ORS 475B.428(3).
For growers registered under the Med Mj Act before December 31, 2014 (if all growers at the
address meet the criteria) a grow site address can have the following number of plants:
e Within city limits in a residential zone: 48
e Within city limits but outside a residential zone or outside city limits: 96.
ORS 475B.428(4).
16’ ORS 475B.430(3). °
'! The Legislature created a category of medical marijuana grower called “a person designated to
produce marijuana by a registry identification cardholder.” ORS 475B.410(18). That category of grower
is defined as growing at a grow site with more than 12 plants, or growing at a location other than the
patient’s residence. Jd. It is only this category of grower that can have the larger usable marijuana limits
under ORS 475B.430.
18’ ORS 475.864(1) as amended by HB 4014, Section 46 (Oregon Laws 2016, chapter 24).
’ ORS 475B.305(1).
2’ ORS 475.864 as amended by HB 4014, Section 46 (Oregon Laws 2015, chapter 24). See also
the definitions for these terms in ORS 475B.015 and ORS 475B.410.
21/ Td.
72! ORS 475B.475.
23’ ORS 475B.475 and ORS 475B.478.
4’ We interpret “marijuana” to include “usable marijuana” as a part of the whole marijuana plant,
but in dried form. ORS 475B.015(14) and (29) and ORS 475B.410(11) and (23). As a practical matter,
the medical marijuana plant, without further processing, is useless if it cannot be converted to, at least,
usable marijuana. From the Med Mj Act generally, we conclude the intent of ORS 475B.475 was to
make exempt the possession of usable medical marijuana in its reference to “marijuana”.
2’ The CSA defines “manufacture” as “production” or “propagation” of a controlled substance.
ORS 475.005. Manufacture of marijuana is prohibited under the CSA, ORS 475.856, but the CSA
specifically exempts OLCC licensees and persons acting in compliance with the homegrown provisions of
the Rec Mj Act. ORS 475.856(2). The Med Mj Act exempts from the CSA persons acting in compliance
with the Med Mj Act. ORS 475B.475.
26’ ORS 475B.020, ORS 475B.375(1).
271 ORS 475B.400(4).
28’ Under ORS 475.864(1)(a),as amended by HB 4014, Sec. 47 (Oregon Laws 2016, chapter 24) it
is unlawful to possess “an amount of marijuana plants in excess of the amount of marijuana plants
allowed under ORS 475B.245(1)).
Mr. Andre Ourso, OHA; Mr. Jesse Sweet, OLCC; Capt. Davenport, OSP
July 20, 2016
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25! ORS 475B.428, 475B.430 and 475B.433.
3” ORS 475.320(4)(2014). ((4)(a) A registry identification cardholder and the designated primary
caregiver of the cardholder may possess a combined total of up to 18 marijuana seedlings or starts as
defined by rule of the Oregon Health Authority.] [(b) A person responsible for a marijuana grow site may
possess up to 18 marijuana seedlings or starts as defined by rule of the authority for each registry
identification cardholder for whom the person responsible for the marijuana grow site is producing
marijuana..)
3 1783400, Section 82.
%! See, e.g.. ORS 475B.420(7)(a) and (d)(immature plants that are grown for a cardholder are the
cardholder’s property and must be transferred to a dispensary if the cardholder requests;
ORS 475B.425(cardholder can enter into an agreement with a personal responsible for a grow site some
right to possess the cardholders immature marijuana plants); ORS 475B.450(1)(a)(C)(requiring OHA to
establish rules dispensary registration system to track and regulate the transfer of immature marijuana
plants from the dispensary to the cardholder and caregivers.); ORS 475B.453(1)(e)(requirement that
dispensary report to OHA the amount of immature marijuana plants that have been transferred to and
from the dispensary.)
°’ Written testimony of Jennifer Alexander, resident, Joint Committee on Implementing Measure
91(HB 3400), June 3, 2015; Exhibit 4, Written testimony of Jennifer Alexander, Joint Committee on
Implementing Measure 91 (HB 3400) June 15, 2015; Exhibit 7, Oral testimony of Jennifer Alexander,
resident, Joint Committee on Implementing Measure 91 (HB 3400), June 15, 2015.
34/ Td.
35’ ORS 475.864(1)(a) and (b) as amended by HB 4014, Section 46 (Oregon Laws 2016, chapter 24).
36 ORS 475B.245(1).
37 ORS 475B.430.
38’ ORS 475.864(1)(b) as amended by HB 4014, Section 46 (Oregon Laws 2016, chapter 24).
3’ ORS 475b.475 and 475B.478.
“” ORS 475.864(1) as amended by HB 4014, Section 46 (Oregon Laws 2016, chapter 24).
41/ Id.
“! ORS 475B.255, 475B.443(2) do not allow nonlicensed or nonregistered production of
cannabinoid extract.
*5’ ORS 475.864(1)(c), (d) and (e) as amended by HB 4014, Section 46 (Oregon Laws 2016,
chapter 24).
44/ Td.
45! See, e. g., Talking Points —- HB 3400-A, Representative Andy Olson, Floor letter submitted for
Third Reading of HB 3400 A-Eng, June 24, 2015, at 1.
“8 Td. (Describing HB 3400-A as “Further Reduction of Marijuana Offense Levels Make
them align more with the intent of Measure 91.”); Preliminary Staff Measure Summary, Joint Committee
on Implementing Measure 91 (3400-30), June 12, 2015. (Summarizing HB 3400-9 as establishing
exemptions for licensees to criminal penalties and modifying classes of criminal violations.)