SALT LAKE CITY — What would Utah's medical marijuana program look like if the ballot initiative known as Proposition 2 is passed by Utahns in November?
The Utah Medical Association warns the initiative would essentially usher in recreational use of marijuana, by eviscerating state safeguards against it. So does a recently announced coalition of law enforcement representatives, faith-based organizations, prominent civic leaders and others trying to defeat the measure and replace it with legislation they say could help those in need without jeopardizing youth and others.
Utahns' compassion for the suffering, these groups say, is being exploited by a deceptive effort to make the use of marijuana exceptionally difficult to regulate in any context.
The initiative campaign, called the Utah Patients Coalition, insists the argument about enabling recreational marijuana use is worthy of contempt and public condemnation. Campaign director DJ Schanz has argued that the regulations on medical marijuana use in Proposition 2 are among the strictest in the country, with the goal of easing the suffering of people who could benefit from its use.
Both sides of the issue will have plenty to say to voters about the intent and impact of Proposition 2 as election season heads into its final weeks. But precisely what does an in-depth read of the initiative tell us about the basic facts governing how marijuana in Utah would be grown, tested, recommended to patients, sold and ingested if the initiative becomes the law of the land?
The Deseret News conducted an examination of Proposition 2, drawing on several months' worth of insights from medical and legal professionals, as well as representatives of those both against and in favor of the proposition. Here are 13 significant policy questions relevant to voters who will choose whether or not to pass it in November.
1. Who could legally use marijuana?
Proposition 2 would allow people with certain illnesses to apply for a medical cannabis card at a doctor's office. As defined under the initiative, a "qualifying illness" for such a card is one of the following: Alzheimer's disease, autism, cachexia, cancer, Crohn's disease, epilepsy, HIV, Lou Gehrig's disease, multiple sclerosis, post-traumatic stress disorder or ulcerative colitis.
A patient with "a condition manifest by physical wasting, nausea, or malnutrition associated with chronic disease" may also qualify, according to the initiative.
Others who could get a medical cannabis card would be those who have a "rare condition or disease" as federally defined. To be defined as rare, the disease must affect fewer than 200,000 people in the country.
A person could also get a medical cannabis card if they have "chronic or debilitating pain," so long as "a physician determines that the individual is at risk of becoming chemically dependent on, or overdosing on, opiate-based pain medication," Proposition 2 states.
Those who don't fall under any of those categories could still qualify for a medical cannabis card if they are given an exception by a state-appointed board made up of five doctors called the Compassionate Use Board.
A person who qualifies for a cannabis card must be given one within 15 days of applying, the initiative says.
Under current Utah law, anyone can legally use CBD oil — a substance that has medicinal but no psychoactive properties, but which initiative advocates say doesn't provide the full spectrum of medical benefits without its psychoactive sister substance, THC. CBD oil is technically prohibited at the federal level but is nonetheless sold widely in Utah.
A cannabis cardholder would be permitted to purchase no more than "2 ounces by weight" of unprocessed marijuana, or alternatively, a processed product that contains no more than 10 grams of THC or CBD. The initiative prohibits a person from purchasing in excess of those amounts in any 14-day period.
Opponents of the initiative say: "The list of 'qualifying illnesses' includes life- threatening and debilitating diseases, but also includes conditions that are difficult to diagnose and can afflict many people in varying degrees, such as 'chronic pain,' which by some estimates includes over 15 percent of the population. Further, the physician must only believe that the patient 'may benefit' from marijuana." — Kirton McConkie law firm's legal analysis on behalf of The Church of Jesus Christ of Latter-day Saints
Supporters of the initiative say: "There is ample evidence that the list of conditions included in the initiative can be alleviated or helped when using cannabis. Sure, such conditions may 'afflict many people in varying degrees,' but what’s important is letting a patient and physician together ascertain what might help, rather than denying them the opportunity by criminalizing cannabis completely." — Libertas Institute counter-analysis to Kirton McConkie
2. What rules would be in place for doctors?
Aside from those who get an exception for the Compassionate Use Board, a person seeking a medical cannabis card must get one through an application process at a doctor's office.
The doctor is responsible for diagnosing the qualifying illness and asserting that the person would benefit from using the drug. Such a card is usually valid for six months.
The initiative defines a physician who is allowed to recommend cannabis as anyone besides a veterinarian who is licensed to prescribe controlled substances.
Except for doctors properly certified in "anesthesiology, gastroenterology, neurology, oncology, pain and palliative care, physiatry or psychiatry," the initiative stipulates that no physician is permitted to recommend cards to more than 20 percent of their patients "at any given time."
While a physician would be able to recommend a person for card eligibility, U.S. law prohibits them from prescribing a specific dosage or a specific course of treatment because of marijuana's federal classification as a Schedule I drug.
The initiative also says doctors are not allowed to advertise that they sometimes recommend patients for eligibility for cannabis cards, except via a website that displays a green cross, outlines which qualifying illnesses they treat and lists a scientific study about cannabis.
The measure prohibits doctors from owning, managing, working for or volunteering for a medical marijuana dispensary.
Proposition 2 also exempts doctors from being civilly or criminally liable based on the recommendation for a card.
Opponents say: "The marijuana initiative does not require physicians providing a recommendation to have any training or experience with the effects of marijuana or even the illness being treated. Any 'physician' can refer a patient for cannabis treatment. … This list includes, among others, optometrists, podiatrists, dentists, physician’s assistants, and certified nurse midwives." — Kirton McConkie
Supporters say: "Physicians who choose to recommend cannabis can seek continuing education on the issue from a number of organizations or review ample medical literature that speaks to the benefits and risks of cannabis. … Doctors aren’t required to 'have any training or experience' before prescribing deadly prescription drugs. So why the double standard?" — Libertas Institute
3. How would existing marijuana laws be affected?
Thirty-one states have passed public policy broadly legalizing the medicinal use of marijuana, according to the National Conference of State Legislatures. However, federal code prohibiting all marijuana use is still on the books.
Utah's medical marijuana initiative would prohibit state and local police officers from conducting "any arrest or seizure of cannabis" or spend time on any criminal investigation into a person exclusively because of "activity the officer believes to constitute a violation of federal law if the officer has reason to believe that such activity is in compliance with the state medical cannabis laws."
"Nor shall any such officer expend any state or local resources … to provide any information or logistical support related to such activity to any federal law enforcement authority," the initiative says.
Opponents say: Preventing local police from cooperating with federal authorities enforcing federal laws violated by marijuana use could affect distribution of federal funds to Utah.
Supporters say: If Utah law allows for medical cannabis, the state should not allow federal agents to interfere.
4. Who could grow their own marijuana?
If Proposition 2 passes, any cardholder who lives more than 100 miles away from a state-licensed dispensary will be permitted to grow as many as six marijuana plants "for personal medical use" beginning Jan. 1, 2021. That date is 10 months after the state must begin granting dispensary licenses.
Plants grown for personal use must be "within an enclosed and locked space and not within view from a public place." The plants cannot be grown inside a home or within 300 feet of any house or within 600 feet of a "community location," which would include a school, a church, a library, a playground or a park.
A cardholder could designate up to two caregivers who would be allowed to grow up to six plants under those regulations. A doctor would have to determine the cardholder has physical difficulties that would require assistance to access cannabis.
The initiative does not address any limits on how much personally grown marijuana a person can possess at a given time, except that the highest number of plants they can grow is six. It also doesn't say whether a person growing their own marijuana can also travel to another part of the state to purchase it from a dispensary.
A caregiver must be at least 18 and have no felony convictions whose sentence expired within the past seven years. Caregivers are allowed to "purchase, possess, and transport" marijuana "on behalf of the designating patient," and can accept payment for their services.
For marijuana plants that a cardholder or their caregiver grows, the initiative does not include requirements mandating laboratory safety testing.
Opponents say: The Kirton McConkie analysis says nothing in the initiative allows the state to license or monitor personally grown marijuana operations. Michelle McOmber, CEO of the Utah Medical Association, has said the U.S. Food and Drug Administration "has not approved any whole plant as medicine, at all, ever."
Supporters say: "This provision (for personally grown plants) was only included as an 'insurance policy' of sorts, to encourage the government to comply with the will of the voters and allow dispensaries to obtain licenses to operate." — Libertas Institute
5. What age protections and restrictions are there?
The initiative does not contain any age restrictions on who may use medical marijuana. However, a medical cannabis card itself cannot be issued to anyone under 18.
In order for a minor to legally use medical marijuana under the initiative, their parent or legal guardian must be issued a card after "treatment with medical cannabis has been recommended by the minor's physician."
Any person who works at a medical marijuana growing facility, processing plant, testing facility or dispensary must be at least 21.
None of those businesses are allowed to retain any employee or investor who has ever been convicted of a felony.
The initiative gives the state rule-making authority to create its own "certification standards" and training for marijuana-related businesses.
Opponents say: "The initiative language … allows marijuana use by anyone, even children, for whom there is no safe level of THC for their developing brains," the Utah Medical Association says. The Kirton McConkie analysis says the initiative would make marijuana more accessible to minors: "Marijuana usage among children ages 12-17 … is generally significantly higher in states that have legalized recreational and medicinal use."
Supporters say: "This is really about a very narrow opportunity for patients, family and parents to alleviate pain and suffering," said Salt Lake County District Attorney Sim Gill. The Libertas Institute says both children and adults should have alternative treatment options to manage debilitating illnesses: "Epilepsy and other conditions can begin at any age, and FDA-approved drugs do not always control the symptoms children experience."
6. How many dispensaries?
The number of dispensaries in the state would be limited to no more than one per county, except in large counties where the state can issue a number of licenses "equal to the number of residents in the county divided by 150,000, rounded up to the nearest greater whole number."
According to population projections released in 2017 by the Kem C. Gardner Institute, these guidelines would allow up to eight dispensaries in Salt Lake County, five in Utah County, three in Davis County, two in Weber County, and two in Washington County as of the state's dispensary licensing deadline.
Preferences would be given to applicants who can show they "will best ensure the safety and security of patrons and the community" and demonstrate they can keep costs low.
The "suitability of the proposed location" for dispensaries would also be a factor in the application process.
The state would limit the number of available cannabis growing facility licenses to 15.
The initiative would require dispensary license applicants to demonstrate they have at least $250,000 "in liquid assets" available to them. That number is $500,000 for each marijuana growing facility license applicant, and $100,000 for those who want a license to run a processing facility or testing laboratory.
Products sold by dispensaries would also not be subject to state sales tax — a contrast to several states with medical marijuana programs that do pull revenue from such sales.
Opponents say: "As far as we can determine, marijuana would be the only serious controlled substance in Utah sold for alleged medicinal purposes without a prescription and outside of licensed pharmacies," the Kirton McConkie analysis says. The Utah Medical Association says "non-medically trained personnel … would be tasked with deciding what product would be best for the client’s condition. For real patients, this model is fraught with dangerous consequences."
Supporters say: "Of course, we would welcome a rescheduling of cannabis — since this classification is outright stupid — and the option to dispense cannabis and its derivatives through the pharmacy system. Because that is not currently an option, and because it appears to not be changing anytime soon, patients with urgent needs must be afforded another option. Thus, dispensaries." — Libertas Institute
7. Could marijuana be possessed without a card?
The initiative requires the Utah Department of Health to begin issuing medical cannabis cards to qualifying applicants by no later than March 1, 2020.
But at any time before July 1, 2020, a person without a card but who possesses marijuana is given "an affirmative defense to criminal charges" if they can show they "would be eligible for a medical cannabis card."
The initiative does not explicitly say that the person using that defense must prove they bought the marijuana from a state-approved seller, whether in Utah or elsewhere.
The initiative does not require that the Utah Department of Agriculture and Food take applications for dispensary licenses until March 2020, nor cannabis growing facilities until January 2020.
The initiative also says a person can use a defense against criminal charges if they are not a Utah resident or if they have lived in Utah for less than 45 days, and they have a medical cannabis card or an equivalent that has been issued by another state.
But such a defense doesn't guarantee a person wouldn't face charges for possession in the first place.
Additionally, the initiative says a police officer does not have probable cause to believe someone is engaged in illegal behavior just because they are possessing marijuana or marijuana paraphernalia.
Opponents say: If the initiative passes, it immediately legalizes marijuana possession long before medical cannabis cards are distributed, long before doctors may recommend cards and long before state dispensaries are set up. Anyone just has to show they would qualify by virtue of their medical condition.
Supporters say: Those who need medicinal marijuana shouldn't have to wait a year or two until the state government is capable of distributing cards or licensing dispensaries.
8. What about cardholder violations?
A patient who has a medical cannabis card, but doesn't have it with them as they are legally required to when stopped for questioning by police, can then explain they are a valid cardholder under the law. At that point the officer is required by the initiative to "attempt to access the (state's) electronic verification system to determine" whether that is the case.
If the officer determines that person was issued a card, the initiative prohibits them from arresting the individual "for the sole reason that the individual is in possession of cannabis, a cannabis product, or a medical cannabis device."
The officer in such a case is also prohibited from seizing the marijuana or paraphernalia.
However, the person may still be fined $100 for not having their card with them or not having the proper labeling of their marijuana.
Opponents say: "Violations of the law would result in no more than a $100 fine, no matter the severity." — Utah Medical Association press release
Supporters say: "Patients should not be subjected to heavy criminal punishment merely because they forgot to carry their card." — Libertas Institute
9. What about quality, safety and security?
Under the initiative, licensed commercial cannabis growers would be required to keep their cannabis plants obscured from view at the perimeter of their facility.
Growers would also be required to maintain an "inventory control system" uniquely identifying each plant once it reaches a certain size and stage of development, each harvest of such plants, each transported batch, and any disposal of contaminated or excess cannabis.
After marijuana would be processed into a product, it would be required to be put into packaging describing what it is, the amount of THC and CBD it contains, and giving it an individual identifier number that is connected to an inventory system.
However, "a cannabis product may vary in the cannabis product's labeled cannabis profile by up to 15 (percent) of the indicated amount of a given cannabinoid, by weight," the initiative says.
Cannabis contains numerous chemical components called cannabinoids, including THC and CBD, whose abundance in proportion to each other can vary significantly by cultivated batch, and can even be different from plant to plant.
Additionally, all marijuana products manufactured in Utah would be prohibited from designs deemed to resemble a candy package or appeal to children, and would be required to be opaque, designed to prevent children from opening it, and "tamper evident."
Any marijuana sold at a dispensary must have also passed the testing of "a representative sample" of it at "an independent cannabis testing laboratory," the initiative says.
Any lab that detects a batch of product not safe enough for consumption because of contaminants would be mandated to report that finding to the state.
Opponents say: "People assume that physicians would have some idea of how to prescribe or recommend it safely, for which diagnoses, and understand the contraindications, drug interactions and dosing guidelines for a plant that is wildly diverse and inconsistent in active ingredients. None of this is the case with what is being proposed in the (initiative)." — Utah Medical Association
Supporters say: The initiative would "require thorough testing of medical cannabis for potency and contaminants and require that medical cannabis be appropriately labeled and securely packaged." — Utah Patients Coalition campaign
10. How would Prop 2 affect landlords, city planners?
The initiative prohibits landlords from banning tenants "solely for the person's status as a medical cannabis cardholder," unless doing so "would cause the landlord to lose a monetary or licensing-related benefit under federal law."
An ongoing Drug Safe Utah lawsuit against Lt. Gov. Spencer Cox, claiming he should have refused to certify the initiative for being plainly unconstitutional, argues the restriction on landlords infringes upon their rights, including freedom of speech, equal protection under the law and due process.
The initiative also prohibits cities and counties from enacting zoning rules barring marijuana growing facilities, processing facilities, testing laboratories or dispensaries "on the sole basis" of their status as such a business.
Drug Safe Utah, a political issues committee formed this spring in opposition to Proposition 2, is claiming in court that the initiative unlawfully usurps the legal zoning functions that are the discretion of local governments.
Opponents say: The initiative "threatens the federal and state constitutional rights of Utah citizens" by undermining "their ability to own and control property" and through "interference with the administrative functions of county and municipal governments." — Drug Safe Utah lawsuit
Supporters say: "A person shouldn't be ejected from their home merely because of the type of medicine they use" and "patients should not be deprived of reasonable access to their medication merely because some elected officials don't want a dispensary in their community." — Libertas Institute
11. What about smoking marijuana?
Under the initiative, if a patient uses "a means of administration that involves cannabis combustion at a temperature that is not greater than 750 degrees Farenheit and that does not involve using a flame," then they are not considered to be smoking marijuana.
Generally, that means marijuana can be vaporized, but not lit and smoked in the form of a marijuana cigarette. Smoking marijuana as defined in the initiative is not permitted.
A 2017 study from Portland State University concluded smoking marijuana at a temperature greater than 750 degrees can release harmful carcinogens.
The initiative says a person who violates its smoking restriction "is guilty of an infraction." An infraction is similar to a traffic ticket.
Any ingestion of marijuana "in public view" would be prohibited, except in "a medical emergency," though the measure doesn't explicitly define either of those terms.
The initiative does not list any prohibitions on other methods of consuming marijuana, which include edible products, topical ointments, tinctures and more. The Utah Department of Agriculture and Food has raised questions to state lawmakers over whether allowing edible medical marijuana products may conflict with the state's Wholesome Food Act.
Opponents say: "The ban itself is absolutely phony. … The prohibition on smoking — in my mind, the only reason that it's in there, is to help sell the initiative to the public. … (It) is purely P.R., it is not enforceable by any stretch of the imagination." — Rep. Brad Daw, R-Orem
Supporters say: Vaporizing is an effective and quick way of getting treatment, especially for patients with digestive issues. "So prohibiting smoking is to preserve lung health. A patient doesn't necessarily need to combust plant material and inhale that to get the medication. … Vaporizing and (putting) the cannabinoids up into a vapor, inhaling it, is healthier." — Christine Stenquist, founder of Together for Responsible Use and Cannabis Education
12. What challenges would state agencies face?
The initiative requires the state to begin accepting applications for growing facility, lab testing, and production facility licenses by Jan. 1, 2020.
The Department of Agriculture and Food, plus the Utah Department of Health, Department of Public Safety, and Department of Technology Services would be responsible for establishing a state "electronic verification system" and make it functional no later than March 1, 2020.
That system would need to be usable for patients and doctors participating in the application for a medical cannabis card, as well as to law enforcement to use during a stop to determine whether the person they have contacted is a cardholder.
The electronic verification system would also need to be connected and compatible with an inventory control system that can "track in real time … purchase history of cannabis or a cannabis product" by a cardholder.
The inventory system would be capable of relaying information to the state electronic verification system about "the quantity and type of cannabis or cannabis product purchased" by a person, as well as any marijuana-related facility that had a hand in growing, producing, testing or selling a specific item.
The deadline to both begin issuing cannabis cards and grant cannabis dispensary licenses is March 1, 2020. For growing facilities, testing labs and production facilities, the deadline to begin issuing licenses is Jan. 1, 2020.
Scott Erickson, deputy commissioner of the Utah Department of Agriculture and Food, told state lawmakers that he doesn't believe some of the timelines required of state departments in the initiative are "realistic."
"That's a challenge for us to meet those guidelines with the initiative," Erickson said.
Utah Department of Health says: "There are several systems that (we) would be required to implement … in terms of documenting things. … We have to have an electronic portal so (physicians) can issue recommendations. We don't have that system." — Dr. Marc Babitz, the department's deputy director. The department says it is neutral toward the initiative.
Supporters say: "We’re not tied to the timeline. … We saw that in other states that after voters said, 'Yes, we want this,' that regulators took years to implement what the public had already passed. Those provisions were put in place to provide urgency to tell the government, 'The people have spoken — get things in order.’" — Connor Boyack, president of Libertas Institute
13. What about ongoing marijuana research?
State lawmakers recently instituted a Cannabinoid Product Board, made up of medical and research professionals, which examines existing studies into marijuana's medical properties.
Besides somewhat expanding the parameters of which kinds of studies board members examine, Proposition 2 also says any findings by the body "may not limit the availability of cannabis" in Utah.
The board is responsible under current laws for examining what cannabis treatment guidelines may be appropriate for state lawmakers to learn about. But the initiative makes explicit that such guidelines, submitted to legislators annually, cannot limit marijuana availability.55 comments on this story
Salt Lake County Health Department says: "The initiative actually encourages science to be ignored. … Those guidelines may not limit the availability of cannabis for any reason, even if further studies conclude marijuana use is more dangerous than currently known. … If it is ignoring available science, that's bad health policy." — Gary Edwards, executive director of the department. The department has not taken a position on the initiative.
Supporters say: "This merely restrains a bureaucratic panel from steamrolling the entire electorate. Of course, we welcome additional scientific research and should the board identify causes of concern, they are welcome to publicly present their findings to elected officials and the public for debate and consideration to potentially amend the law in response." — Libertas Institute