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  • David Casey

Marijuana, Chewables, and the Fuzzy Felony / Misdemeanor Line

According to the L.A. Times, the average American joint contains 30 grams of THC, which is the chemical that leads to a high. The average edible serving will contain roughly 20 grams of THC, which takes much longer to absorb due to the delay in absorption through digestion. (https://www.latimes.com/projects/la-me-weed-101-thc-calculator/). Despite the fact that edibles may contain as little or even less THC as a joint, in Missouri they can be punished very differently.


In Missouri, recreational drugs are criminalized under Section 579.015. It reads that a person “commits the offense of possession of a controlled substance if he or she knowingly possesses a controlled substance... the offense of possession of any controlled substance except thirty-five grams or less of marijuana or any synthetic cannabinoid is a class D felony... the offense of possession of more than ten grams but thirty-five grams or less of marijuana or any synthetic cannabinoid is a class A misdemeanor...”

Controlled substances are defined in Section 195.017, and there we find that tetrahydrocannabinol (THC) and Marijuana are both classified as scheduled I controlled substances.


So, looking at the language of 579.015, we can see the distinction - possession of a controlled substance is a class D felony, except for marijuana under 35 grams, which makes the possession a misdemeanor. Marijuana is a plant. Gummies, cookies, brownies, wax and other edibles contain THC, and these substances are not “marijuana” as defined under the statute. Therefore, the possession of edibles in even the smallest, trace amounts, is technically a class D felony under the laws of this state.


Of course, police officers have broad discretion in how they refer charges to the prosecutor for charging consideration. And often, officers will refer small amounts of edibles as misdemeanor “under 35g of marijuana” due to policy, resource, and other considerations. For instance, to make edibles a felony, the officer would have to send the substance to the crime lab for testing in order to confirm that the substance seized does in fact contain THC. This is both costly and time-consuming. Prosecutors also have broad prosecutorial discretion, meaning they have the discretion to issue charges or refrain from issuing charges, as they see fit.


Thus, while an edible might not be charged as a felony where a comparably high-inducing joint would be charged as a misdemeanor - it could be. And that alone is an injustice, and should give lawmakers cause for concern.

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