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What's in Your Pot Brownie? Marijuana Edibles and the Law

By George Khoury, Esq. on May 01, 2017 | Last updated on March 21, 2019

As the law seems to be changing in favor of marijuana legalization and decriminalization, many people often wonder where marijuana edibles, like pot brownies, or pot cookies, fall in regard to legality. In many states, the penalties for having or eating marijuana edibles can be much more severe than one might expect.

For instance, in states like Texas, possession of a single pot cookie could result in worse penalties than being found with up to a quarter pound of marijuana. This is due to the fact that marijuana edibles are frequently made using concentrates, like hash oil, the possession of which in Texas is deemed a felony, regardless of how little is possessed.

In states that have legalized marijuana for recreational or medical purposes, the legality of marijuana edibles is not always certain. While all states with legal marijuana prohibit minor consumption and sales, there are other more nuanced issues as well. State laws generally permit individuals to possess limited quantities of marijuana, and, usually, include lesser quantities of marijuana concentrates. If concentrates are not permitted, then a marijuana edible made from marijuana concentrate will be considered illegal.

An additional concern with the legal marijuana edible industry is that it is still in the "emerging" stages, and regulation has fallen behind. This means that manufacturers may not be held to the same state food safety standards as other food manufacturers. Fortunately, states are catching up and implementing regulations.

In states that do not have any form of legal marijuana, even if it has been decriminalized, the law will likely consider edibles as a derivative of marijuana. When a drug is processed into a more concentrated form, these concentrated drugs are often called derivatives.

Generally, if an illegal drug is more processed, it is more illegal. That means that a piece of pot candy can be punished more severely than possession of a rather significant amount of actual marijuana. Penalties and severity of charges will vary from state to state. Additionally, in states that have passed decriminalization measures that make simple possession an infraction, akin to a speeding ticket, edibles made from concentrates, or derivatives, may not be included and can result in serious criminal charges.

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