1.9Relationship Between the Michigan Regulation and Taxation of Marihuana Act (MRTMA) and Article 7 of the Public health Code

“[T]he MRTMA does not prevent a person accused of possession with intent to deliver between 5 and 45 kilograms of marijuana from being prosecuted under MCL 333.7401(2)(d)(ii) [Article 7 of the Public Health Code].” People v Soto, ___ Mich App ___, ___ (2024). “MCL 333.7401, § § 1 and 2 of Article 7 of the Public Health Code, provides:

(1) Except as authorized by this article, a person shall not manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance . . . .

(2) A person who violates this section as to:

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(d) Marihuana [or] a mixture containing marihuana . . . is guilty of a felony punishable as follows:

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(ii) If the amount is 5 kilograms or more but less than 45 kilograms, or 20 plants or more but fewer than 200 plants, by imprisonment for not more than 7 years or a fine of not more than $500,000, or both.” Soto, ___ Mich App at ___, quoting MCL 333.7401(2)(d)(ii) (quotation marks omitted).

Conversely, “[t]here is no counterpart for defendant’s alleged conduct in the MRTMA.” Soto, ___ Mich App at ___. “Section 4 of the MRTMA sets forth conduct unauthorized by the Act, and provides that all other laws inconsistent with [the] act do not apply to conduct that is permitted by [the] act.” Soto, ___ Mich App at ___ (quotation marks and some brackets omitted). “Notably, although possession with intent to deliver marijuana is addressed in Subsections (1) and (2) [of Section 15 of the MRTMA], it is absent from the provision penalizing the possession, cultivation, or delivery without remuneration more than twice the amount of marijuana allowed by § 5 as a misdemeanor[.]” Soto, ___ Mich App at ___. However, “the conduct underlying defendant’s possession-with-intent-to-deliver-marijuana charge expressly implicates Article 7 of the Public Health Code, which . . . penalizes possession with the intent to deliver between 5 and 45 kilograms of marijuana as a felony.” Soto, ___ Mich App at ___, citing MCL 333.7401(2)(d)(ii). Consequently, “the MRTMA does not supersede Article 7 . . . with regard to the felony prosecution of persons who possess with the intent to deliver more than twice the amount of marijuana allowed by MCL 333.27955.” Soto, ___ Mich App at___.

For a detailed discussion of this issue, see Sections 8.14(E) and 8.15(C).