Honey oil, hash oil and solvent extract are all legal for adults and qualified patients to possess in California. The state’s solvent extraction ban, Health and Safety Code 11379.6, was originally written to prevent methamphetamine production. It is the process that is banned, not the product or its consumption.
Health and Safety Code 11379.6, People v. Bergen
The broad language of the law has plagued people who try to use safe extraction methods like closed loop solvent extraction, CO2 and even alcohol-evaporative concentrates. This is due to the definition in the law.
Legislation has improved this definition, fortunately, in Proposition 64 voter initiative and Senate Bill 94, and it now reads:
11362.3. (b) (3) “Volatile solvent” means a solvent that is or produces a flammable gas or vapor that, when present in the air in sufficient quantities, will create explosive or ignitable mixtures.
We expect that home extraction labs will fade away as commercial production and access become more available, but there will always be a few people who can’t learn from others’ mistakes. Be on the watch for more efforts to go after butane supplies.
Here is a link to a list of solvent flash points and boiling temperatures.
Marijuana should be removed from the controlled substances list
The real problem is that keeping cannabis in the controlled substances list ties it to the extraction penalties for more toxic and dangerous processes. The real solution is to remove cannabis from the list and treat extraction as a commercial enterprise and set safety standards for home production.
Solvent extracts and concentrates are covered by a number of California laws and case law.
Propositions 215 and 64 both included extracts but did not remove cannabis from the controlled substances list. The Health and Safety Code 11379.6 “Meth House” statute, below, includes cannabis because it is on the list of substances in HS 11054, but since 2015 HS 11379.6(d) specifically mentions cannabis extraction. For many years that has meant BHO was legal to possess but not to make. The People v Bergen decision held that it is the process, not the product, that is banned. People v Luna established the prosecutor’s burden of proof. When the legislature passed MCRSA, the medical marijuana regulations, it included a license to make volatile extracts. The following year, a provision was added to HS 11362.775 for an interim local license before the MCRSA licenses issue. Prop. 64 mirrors that licensing process for nonmedical use and modified the legal issues on extraction by including in HS 11362.3(a)(6) the term “volatile” rather than simply “chemical extraction.” Continue reading Hash oil, BHO, chemical solvent extraction laws
People v Luna: “while the [chemical extraction] manufacturing process need not be complete, it must at least be started.”
“[W]hile the [solvent extraction] manufacturing process need not be complete, it must at least be started.” … “At the time appellant was arrested, he had no ability to begin manufacturing hashish, which expert opinion established is an instantaneous as opposed to an incremental process. In order to begin manufacturing hashish, appellant still had numerous steps to accomplish, including assembling the components of the manufacturing device… ” Continue reading Luna: Hash oil manufacturing case needs all components
People v. Bergen: Medical use is not a defense against charge, use of chemical extraction to manufacture a controlled substance
Note: Because marijuana and extracts are in the controlled substance list, because the HS 11379.6(a) chemical extraction ban is a general intent offense and because the medical marijuana laws do not list a specific protection from the chemical extraction charge, there was no defense. In 2015 the legislature passed the Medical Cannabis Regulation and Safety Act creating a dual state and local license for this activity.
“We conclude that when, as here, the method used to extract the marijuana resin was by means of a chemical such as butane, section 11379.6(a) applies over the more general statute punishing marijuana cultivation, harvesting or processing.” Continue reading BHO and chemical extraction of cannabinoids / concentrates