Medical Marijuana Legalization in Utah: Two Sides of the Same Coin

For many years, patients, caretakers, and citizens have advocated for medical cannabis in Utah, working tirelessly to legalize cannabis for medicinal purposes for patients with qualifying medical conditions. In March of 2014, Utah became the first state to enact a low-THC, high-CBD medical cannabis law known as Charlee’s Law to treat severe cases of epilepsy. However, cannabis legislation has progressively slowed down since then. Over the past three years, state legislators have attempted and failed to pass a full medical marijuana legalization measure.

After Charlee’s Law went into effect, the Medical Cannabis Act that would have legalized doctor-recommended medical cannabis for nine (9) qualifying medical conditions was defeated in the House, although it was passed favorably through the Senate in 2016. This year, cannabis advocates successfully rallied together to forge a route to legalization by placing the measure before voters. Utah Patient Coalition is leading the 2018 medical marijuana initiative campaign, known as Proposition 2, to establish a medical marijuana program for sick and suffering patients. Proposition 2 would specifically:

FOR MEDICAL CANNABIS PATIENTS:

  • Protect terminally and seriously ill patients with specific debilitating medical conditions from arrest and prosecution if using medical cannabis pursuant to their doctor’s recommendation.
  • Allow a patient who needs assistance to designate a caregiver to help the patient obtain and administer their medication. Designated caregivers must pass a background check.
  • Permit medical cannabis cardholders to obtain no more than two (2) ounces of cannabis or 10 grams of CBD or THC from a licensed dispensary during a 14-day period.
  • Maintain prohibitions on the public use of cannabis, driving under the influence of cannabis, and smoking cannabis.
  • Establish an electronic verification system administered by the Department of Health and issue medical cannabis cards to qualifying patients while tracking the amount of cannabis purchased by each patient.
  • Provide an affirmative defense for medical cannabis related charges that can be used by patients until patient ID cards become available.

FOR CANNABIS BUSINESSES:

  • Provide for issuance of four (4) types of medical cannabis business licenses: (1) cannabis cultivation facility; (2) cannabis processing facility; (3) independent cannabis testing laboratory; and (4) cannabis dispensary.
  • Establish restrictions on the number of medical cannabis businesses, including that no more than one cannabis dispensary be licensed for every 150,000 residents in a county, rounded up to the nearest whole number.
  • Prohibit felons from owning or working at a medical cannabis business.
  • Establish restrictions on the locations of medical cannabis business: (1) no medical cannabis business may be located within 600 feet of a school, public park or playground, church, or library; (2) no medical cannabis business may be located within 300 feet of an area zoned exclusively for residential use; (3) a medical cannabis business must be in compliance with any zoning restrictions enacted by the local government.
  • Require medical cannabis businesses to use an inventory control system to track cannabis at every step from initial planting to sale.
  • Require thorough testing of medical cannabis for potency and contaminants and require that medical cannabis is appropriately labeled and securely packaged.
  • Create a system to evaluate competing applications for medical cannabis licenses that will select those applicants for licensure who are best qualified to operate in compliance with the law and to provide affordable medical cannabis to patients.
  • Allow local governments to require cannabis businesses to obtain a local license and to impose restrictions on cannabis dispensary operations.
  • Exempt medical cannabis from sales tax.
  • Generate sufficient revenue from medical cannabis program fees to offset all expenses of establishing and maintaining the medical cannabis program.

The full initiative may be found here. Support for legalizing medical marijuana in Utah is overwhelmingly strong, with 70% of voters in favor of legalization; but not everyone supports Proposition 2, and those who strongly oppose were forced to rethink their strategy and take action. The Church of Jesus Christ of Latter-day Saints, one of the most influential political powers in Utah, formally announced its opposition to the medical marijuana initiative, alongside Republican forces that have rallied against legalizing medical marijuana stating the initiative does not strike the appropriate balance in ensuring safe and responsible access for patients, while also protecting youth and preventing other societal harms.

Governor Gary Herbert and state lawmakers realized voters were likely to take matters out of the government’s hands and pass a measure that is powerful, but perhaps imperfect. As a result, state lawmakers, faith leaders, and advocates began negotiating several weeks ago to identify areas of common ground and determine if there were ways to make amendments that would resolve concerns while preserving patient access.

COMPROMISE

Gov. Herbert called for a special session of the Utah Legislature after the November election to debate an alternative medical marijuana proposal regardless if Proposition 2 is approved by voters. Proponents and opponents of Proposition 2 came to a mutual agreement with Gov. Herbert to pass a compromise bill, the Utah Medical Cannabis Act, in early 2019. A draft of the compromise legislation may be found here.

Below is a list of the major modifications from Proposition 2 which has been outlined by Libertas Institute:

CONDITION LIST

  • Hospice is added as a new condition
  • Terminal illness with less than six (6) months to live is added as a new condition
  • “Other autoimmune disorders” is removed
  • “Other gastrointestinal disorders” is removed
  • Pain is redefined as any pain lasting longer than two (2) weeks that hasn’t substantially responded to non-opioid medication or physical treatment

DISPENSARIES

  • Minors are not allowed inside
  • ID cards must be provided
  • Must employ one (1) pharmacist to consult with patients
  • Patient records will not be destroyed after 60 days
  • Renamed as “medical cannabis pharmacies” (a state legal definition; they’re not actual pharmacies)
  • Only five (5) privately owned facilities will be licensed
  • A “state central fill pharmacy” will also be created, which is government owned and will ship products to local health departments for patient pickup
  • Date triggers pressuring the central fill to begin operations will expand the number of privately owned “medical cannabis pharmacies” up to 10 maximum, should the central fill be delayed or unable to open

MEDICINE TYPE

  • Flower is permitted but must be sold in blister packs with consistent weights between each flower, so dosing can be more easily achieved
  • The only edible type permitted is a cube-shaped chewable gummy or dissolvable lozenge
  • Resin/wax is permitted as a tertiary delivery type; patients must try, and not succeed with two other methods before attempting this one
  • Maximum possession limit is a 30-day supply (four (4) ounces flower or 20 grams THC in cannabis products)

PHYSICIANS

  • Only MDs or DOs can provide a recommendation
  • Must take four (4) hours of training every two (2) years, which may count towards their existing continuing education requirements
  • May optionally specify a dosage restriction for the patient; if specified, the patient can only purchase that medicine type/quantity from the medical cannabis pharmacy
  • If no dosage is specified, the patient must consult with the pharmacist to have dosage determined; purchased products are put into a database so the physician can later review and consult with the patient
  • May not receive compensation (“kickback”) from cannabis businesses for their recommendation
  • The first card issued has one (1) month maximum, first renewal can be for up to two (2) months, and subsequent renewals up to six (6) months

TRIGGERS

  • Affirmative defense is extended through January 1, 2021, when medical cannabis pharmacies must be operational; only applies if patients had a pre-existing diagnosis from a physician who believed they could benefit from cannabis at the time of arrest
  • Home grow provision is eliminated; if medical cannabis pharmacies are not operational by the above-mentioned date, medical decriminalization kicks in and patients may not be prosecuted for using medical cannabis in the forms allowed under Utah law.
  • As mentioned above, should the state central fill pharmacy not be operational under the timeline required, more licenses will be issued to privately owned medical cannabis pharmacies
  • If cannabis is rescheduled, medical cannabis pharmacies will have one (1) year to either cease operations or convert to a traditional pharmacy, which could then sell cannabis as well

OTHER

  • Patients are only prohibited from getting a medical cannabis card if they were convicted of a felony for drug distribution
  • New crime created for patient diversion when giving medical cannabis products to others
  • Existing penalties apply to smoking; lower infraction penalty is removed
  • Liquid assets required to operate a cannabis business cut in half
  • Zoning restrictions for distance requirements of cannabis are removed; cities must zone medical cannabis pharmacies the same way they do for tobacco shops and liquor stores
  • Detailed annual reporting required to help advocates and elected officials analyze what’s working and what needs to be tweaked
  • Employers may not discriminate against medical cannabis cardholders for the mere fact that they are a patient
  • All cannabis products will carry a warning label

The compromise bill differs in a number of ways from Proposition 2 though, and every regulation set out in Proposition 2 will be superseded by the ones in the compromise bill. Unlike the initiative, which allows for qualifying patients to purchase a variety of cannabis products from privately owned dispensaries, the state’s alternative will establish a centralized pharmacy to supply health departments with cannabis and cannabis products. The centralized state pharmacy would package individual medical cannabis orders and ship them to a local health department for qualifying patients to pick up. Additionally, the bill would allow fewer dispensaries than Proposition 2 and would add several regulations, such as dosage requirements. The privately-owned pharmacies and the Department of Health would handle the distribution, doctors and licensed pharmacists would oversee all medical marijuana recommendations, home cultivation would be prohibited, and certain cannabis products would be banned as well. The state-run operation is meant to increase safeguards and reduce the likelihood of medical cannabis reaching the black market while also protecting youth and preventing other societal harms.

NOVEMBER ELECTION

Utah’s election begins Tuesday, November 6, 2018. Proposition 2, as originally written, will still be on the Utah ballot; despite consensus on a compromise bill that would supplant Proposition 2. The new bill is not binding and there is no guarantee the compromise bill will pass in Gov. Herbert’s special session. There is still a chance, however small, that the legislature will throw the compromise bill out and stick with Proposition 2. Therefore, how Utah citizens vote on Proposition 2 remains important, with the potential to dramatically affect how the Legislature, and ultimately the Governor, respond to the compromise initiative

If you are not registered to vote, you may do so here.