AUGUSTA, Maine — Baked or smoked? How patients use their medical marijuana determines their tax rate, according to a recent opinion from Maine Revenue Services.

After Mainers approved medical marijuana, lawmakers decided that marijuana sold for medicinal purposes would be subject to the 5 percent state sales tax. Now Maine Revenue Services has issued an opinion that prepared foods such as brownies that include medical marijuana will be taxed at the higher 7 percent rate. This has many questioning the ruling.

“It again shows how disconnected some people in the taxing department are from the general will of Maine people,” said Paul McCarrier, board member of Medical Marijuana Caregivers of Maine. He said medical marijuana is just what it says it is — a medicine — and should not be taxed at all.

McCarrier said for some individuals, eating foods that contain medical marijuana is the best way for them to use the medicine. He said smoking or using vaporizers does not work for everyone and patients should not have to pay an extra tax in order to use medicinal marijuana.

“Sometimes it is the best delivery method for people,” he said. “They can ingest it and it helps with their various pains and afflictions. For some people it is their only delivery means.”

In 2009, Mainers passed a referendum allowing medical marijuana dispensaries with nearly 60 percent of the vote. The bill was reworked by a task force named by then-Gov. John Baldacci and became law in 2010, with the first dispensaries being opened this year.

Peter Beaulieu, director of the Sales, Fuel and Special Tax Division at Maine Revenue, said the policy question of taxing medical marijuana was settled by legislation. A provision of the law clearly states the sales tax exemption for medicine does not apply to medical marijuana.

“It is MRS’s position that a food product containing medical marijuana is not a grocery staple because it is not ordinarily consumed for human nourishment,” Beaulieu wrote. “The food product being prepared is not for general consumption. It is primarily prepared as an alternative form of delivering the medical marijuana into the body.”

He said for prepared foods with medical marijuana to be exempted from taxes would take legislative action. He stressed Maine Revenue Services is just interpreting current law.

“I think we are going to have to take another look at this whole area,” said Rep. Meredith Strange-Burgess, R-Cumberland, co-chairwoman of the Legislature’s Health and Human Services Committee.

She said the fact that medical marijuana is taxed at all has concerned her. She said it was not really discussed in any depth because it was part of the bill as submitted to implement the dispensary law voters had approved at referendum.

“My personal opinion is that it should not be taxed,” said Rep. Deborah Sanderson, R-Chelsea. “If they were just making brownies as a snack, that’s one thing, but this is a way to deliver medicine. For many, this may be the only option because they can’t or do not want to smoke marijuana.”

She said the ruling by Maine Revenue Services does not seem logical to her because they are confusing a food product with medicine. She was the sponsor of legislation passed earlier this year that made several changes to the law allowing dispensaries.

“I would hope we could get legislation in this session to address this,” she said. “This really isn’t fair.”

Rep. Anne Haskell, D-Portland, served on the task force two years ago that drafted the dispensary legislation after the referendum vote. She does not remember any discussion of taxing food used to deliver medical marijuana.

“There was not much discussion of taxing medical marijuana at all,” she said. “It was in the bill and we had a lot of issues to resolve in not a lot of time.”

Haskell agrees the Legislature should consider the issue and agrees the taxing of a food because it is being used to deliver a medicine seems strange to her.

“I think of the brownie as simply the delivery method, much as encapsulating a pill so you can swallow the powder you need to swallow,” she said.

Haskell hopes legislative leaders would consider allowing a bill to be considered in January on the issue because lawmakers did not know of the Maine Revenue Services opinion before the deadline to submit bill requests.