Cannabis Law Prof Blog

Editor: Franklin G. Snyder
Texas A&M University
School of Law

Wednesday, October 31, 2018

Proposition 2 The Utah Medical Cannabis Act

AaaUtah voters will decide the fate of The Utah Medical Cannabis Act, or Proposition 2, in the upcoming ballot on November 6, 2018. If passed, Proposition 2 would legalize medical marijuana for individuals with qualifying conditions under a strict state regulatory scheme and would authorize the establishment of private facilities to grow, cultivate, and sell medical marijuana.

If approved by voters, Utah would become the 32nd state to legalize medical marijuana with the addition of Washington D.C.  Proposition 2 can be read in its entirety here.

Proposition 2 Overview

  • Proposition 2 aims to legalize medical marijuana for individuals with qualifying conditions such as AIDs, alzheimer’s, cancer, crohn’s disease, epilepsy, multiple sclerosis, PTSD, autism, any rare disease that affecting less than 200,000 people throughout the U.S., chronic or debilitating pain, or any other condition evaluated on a case by case basis.
  • Individuals with qualifying conditions would receive a medical marijuana card from the Utah Department of Health with the recommendation of the individual’s physician.
  • The initiative would create a Compassionate Use Board responsible for reviewing and recommending approval for an individual who is not otherwise qualified to receive a medical marijuana card to receive a medical marijuana card for compassionate use.
  • Medical marijuana cardholders would be allowed to purchase either 2 ounces of unprocessed marijuana or an amount of marijuana product with no more than 10 grams of THC or cannabidiol during a 14 day period.
  • After January 1, 2021, individuals with medical cards would be allowed to grow six marijuana plants for personal use within their homes if there are no dispensaries within 100 miles.
  • Medical marijuana cardholder would not be allowed to smoke marijuana or use marijuana in public view except in a medical emergency.
  • The initiative would allow for the licensing of up to 15 marijuana cultivation facilities and would restrict the number of dispensaries by the number of residents in a county.
  • Proposition 2 would create 4 different types of private cannabis related facilities:
    1. Cultivation facilities- which grow marijuana to sell to other marijuana facilities;
    2. Processing facilities- which acquire unprocessed marijuana from cultivation facilities, process it into marijuana products, and sell those products to dispensaries;
    3. Testing facilities- which test samples of all marijuana and marijuana products to be sold by dispensaries; and
    4. Dispensaries- which sell marijuana and marijuana products to people who have been approved to use medical cannabis.

Pros

Proposition 2 will greatly expand the current Utah marijuana law that only allows marijuana to be grown, processed, or sold by the state of Utah to qualified research institutions or to people who are terminally ill. The initiative will both authorize the establishment of private facilities to cultivate and sell marijuana and it will greatly expand the group of people who are eligible to use medical marijuana.

The initiative also recognizes the drawbacks of the strict state regulatory scheme by allowing medical marijuana cardholders the opportunity to grow their own marijuana plants within their homes if the individual is not within 100 miles of a dispensary. Proposition 2 restricts the number of dispensaries by the number of residents in a county divided by 150,000 and rounded up to the greatest whole number. Given the geography of Utah and it's sparse population in its mountainous regions, medical marijuana cardholders in those areas potentially would be left without a way to get medical marijuana. With this addition to Proposition 2, medical marijuana will reach a greater number of people who need it, regardless of where the individual cardholder lives.

Additionally, Proposition 2 is expected to be profitable for the state of Utah. The Utah Office of Management and Budget estimate that Proposition 2 will pay for itself and would result in $2.1 million estimated revenue per year. Although Proposition 2 exempts medical marijuana from state and local sales tax, the initiative requires marijuana facilities to pay for licensing and registration fees. The Utah Office of Management and Budget estimate that:

In the first year, Proposition 2 may cost the state $3.6 million, an amount that includes one-time setup costs. Some of the first year’s initial setup costs will have to be paid before the state begins collecting fees, requiring the state to pay $1.3 million from state tax revenue. After the first year, the annual revenue from fees is expected to cover the Proposition’s estimated annual cost of $2.1 million.

Cons

Proposition 2 is silent with regard to how the legalization of medical marijuana will impact employers and employees. Current Utah law allows employers to require employees and applicants to submit to drug testing as a condition of employment as well as for investigative purposes. The exclusion of language in Proposition 2 concerning employee drug testing will likely be problematic for medical marijuana cardholders.

Proposition 2 is also silent as to the effect legalizing medical marijuana will have on drivers in Utah. Specifically, the initiative is silent regarding the treatment of medical marijuana cardholders who are legally entitled to use marijuana and who operate motor vehicles under the influence. Proposition 2 allows medical marijuana cardholders an affirmative defense (meaning it would negate any criminal charges) in criminal cases if:

(a) if an individual is charged with illegally using, possessing, or manufacturing marijuana or marijuana products if the individual would be eligible for a medical marijuana card; or

(b) if the individual has a medical marijuana card from another state and has a qualifying condition under this measure

However, the initiative is silent as to the treatment of driver's found to be under the influence. Utah's definition of a "controlled substance" includes any substance listed as a Schedule 1 drug under federal law, which currently includes marijuana, therby making driving under the influence of marijuana illegal.  The exclusion of language in Proposition 2 concerning driving under the influence will likely be problematic for medical marijuana cardholders.

The Takeaway

With November 6th quickly approaching, Proposition 2 will head to the voting booth and Utah voters will be given the option to legalize medical marijuana for individuals with qualifying conditions under a strict state regulation scheme and authorize the establishment of private facilities to grow, cultivate, and sell medical marijuana throughout Utah. The latest polling on Proposition 2 shows a tight race with 51% of voters supporting the initiative, 46% of voters opposing, and 3% of voters who are undecided, according to the Salt Lake Tribune

--Colin Heinrich

https://lawprofessors.typepad.com/cannabis_law/2018/10/heinrich-statutory-analysis-proposition-2-the-utah-medical-cannabis-act.html

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