In November 2018, Utah voters will be given the chance to vote
to legalize medical marijuana in Utah. Proposition 2, the Utah
Medical Cannabis Act (“Initiative”), is an important ballot measure with
many variables. I do, like most people, see value in medical marijuana but I
want to make sure it is effected in a manner which really carries out the
medical intent of the law. I am providing
insight on the bill from the lense of an Arizona citizen who has seen the
impact of Arizona’s law from both personal and professional viewpoints (I worked
for a year assisting marijuana dispensaries with attaining use permit and
variance applications in Arizona jurisdictions). My interest in the initiative
stems from my Utah roots, my Church, and my sincere belief that Utah stands
poised to be the state who gets medical marijuana done right.
Importantly, there is a difference between the merits of
legalizing recreational marijuana versus legalizing medical marijuana. I am not
going to divulge into the liberty arguments for marijuana. I prefer instead to
emphasize that, as citizens, we are allowed to speak through our vote and
elected representatives (even if our vote ends up binding fellow citizens to
live by the rules society decides it values). I believe that I would be more
likely to vote for a recreational marijuana bill versus a medical marijuana
bill because recreational marijuana leads to higher tax revenues and actually
more flexibility in restricting use. Of course, I am not saying I would vote
for recreational marijuana just the same as, generally speaking, I don’t vote
for laws which increase the availability of alcohol or pornography or other issues
which I deem as social ills.
This article discusses the perceived abuse with existing medical
marijuana laws, a brief debate on the actual medical qualities of marijuana, exploration
of negative consequences of the medical marijuana initiative, and additional
challenges created under the current wording of the initiative.
Abuse Statistics
There are important statistics which point to abuse of
medical marijuana. The Qualifying Illness list includes “Chronic Pain” which is
a hard to prove but easy to diagnose condition. In the Arizona
Department of Health Services (ADHS) July 2018 report it was stated that
87% of Arizona Qualifying Patients got their card under the chronic pain
condition. I believe chronic pain should be thrown out completely, or at the
least, chronic pain users should be limited to non-THC heavy products. This
statistic is alarming to me and makes it clear that the medical marijuana
system is being abused.
Another alarming Arizona statistic is that cards are disproportionately
issued to males between age 18-30 (25% of total users are age 18 to 30). It is a sad reflection on society that young
men appear to be the primary abusers of the drug. Of note, the percentage of
male cardholders has decreased from 73% in 2013 to 60% in July 2018. A concern with regard to lessening of the male-female gap is that ultimately the dispensary is a
business and it is seeking higher profits and expansion of its customer base. The
marketeers of dispensaries and dispensary manager’s business plans likely are targeting
women (including making dispensaries cleaner and better designed…many new
dispensaries have a design which is akin to an Apple computer store). Once again, these developments would
sit fine if it was within a recreational context but when it comes to providing
a medicine it just seems profit driven and not medicine driven. Side note, “free samples” are allowed under the Utah initiative. Free samples is placed under the guise of being provided to low income persons but in reality it’s like any free sample: designed to promote future purchase of the product. It is not being provided for charitable reasons. The dispensary is not advertising charitable giving of marijuana.
It’s possible that young people are more interested in
natural medicines or possibly have a lessened stigma of marijuana but I
tend to view these use statistics as highlighting the abuse of medical marijuana.
The qualifying illnesses listed do not disproportionately affect young persons
and young persons are not disproportionately needing medical care. This usage
statistic is disappointing because, though research has not been completely established,
there are solid indications
that marijuana use can alter positive development of the brain.
Medical Needs
THC isn’t proven to provide significant medical
benefits over CBD based versions. I am not convinced that high THC
content marijuana has worthwhile medical benefits over high CBD
versions. THC is particularly effective in relieving nausea, appetite loss,
and insomnia but is the trade-off psychoactive side effects worth it for
society? These side-effects are the stereotypical effects of marijuana such as increased
heart rate, coordination problems, dry mouth, red eyes, slower reaction times,
and memory loss.
If the goal of the initiative is to let patients and
physicians pursue medical opportunities together then there should be stronger
requirements than just a one time visit with a doctor who does not need to be a
primary care physician. Physicians are unattached to medical users of
marijuana. The Utah law allows for 6 months of automatic refills after only one
visit with a physician (Arizona’s is 1 year) even if the user doesn’t need a
refill. I know that doctors issue prescriptions for opioids after one visit but
couldn’t there be a way to encourage drug use under continued medical
supervision?
The lack of specific prescription may be appropriate for a
drug like marijuana which has a wide margin between effective dose and overdose/addiction
amounts (unlike opioids which have a shorter distance between the amount needed
for pain alleviation and the amount which potentially leads to addiction or
overdose) but if the law is for medical marijuana then there should be more
primary care doctor involvement. With that said, I am not proclaiming to have a
fix for existing opioid issues. The fact that opioid processes are messed up
and that the Church hasn’t issued a statement on these issues is not reason
enough to not get marijuana processes correct. Abuse is going to happen and it
is hard to limit but I see that adding language which requires ongoing
consultation before renewal of a card seems to make sense to me.
Negative Externalities
The ironic negative consequence of medical marijuana is that
it ends up protecting recreational abusers more than a recreational law would.
When marijuana is protected as a medicine and marijuana card carrying becomes
akin to a get out of jail free card, then abuse of marijuana becomes protected
(not that I think marijuana offenders should be placed in jail…lots of
prosecution and sentencing changes needed there). Situations where it becomes
protected include divorce and child custody proceedings, traffic laws,
employment, and landlord/tenant issues. In Utah, a person who uses marijuana
under the guise of “chronic pain” can bind a judge to not allow any mention of
marijuana when drafting a parenting plan.
Additionally, a landlord would be unable to evict a tenant
based on their smoking of medically sanctioned marijuana even though it could
affect neighbors, prospective tenants, and the landlords need to remedy the
effects of smoke and odor damage (not to mention the factual debate of whether
marijuana use increases or decreases the likelihood that a tenant will pay rent).
The marijuana card issued doesn’t distinguish between smoked versus eaten or
CBD versus THC. Smoked marijuana is bad for landlords who won’t be able to
evict people based on marijuana use and instead will have to go through a more
complicated eviction process including proving, assessing, and remedying damages.
Additional
Challenges in the Law
It is fair to note that the Utah initiative does do some things
better than other states. The initiative prohibits smoking and using cannabis
in public view. It has a higher distance requirement for allowing home grown
use (25 miles from dispensary in Arizona versus 100 in Utah). It also gives
decent law enforcement oversight, tracking every aspect of the plant in a
database and allowing inspections of cannabis establishments.
Also, it restricts physicians and medical cannabis establishments
from advertising, and limits how many patients a doctor can recommend for
treatment. If physicians don’t want to give a marijuana recommendation then
they cannot be compelled to do so and physicians can provide a referral which
works for less than 6 months. However, a physician can sign cards for up to 20%
of its patients. The statute (26-60b-107) does not clarify whether its 20% of
prescriptions issued or just 20% of patients. There could be a wide difference
in this number, particularly if the percentage is based off of patients seen
and not prescriptions given. There is not enough elaboration on this 20%
calculation. The law is good to restrict physical advertising. This was
not done under the Arizona law and has led to the creation of clinics which
only issue medical marijuana cards and are obnoxious in their physical
advertising.
While these virtues do exist, there are still important
changes to be made in addition to refinement of the qualifying illnesses, age
restrictions, and doctor involvement.
Medical marijuana should be dispensed from pharmacies. I see
that recreational marijuana dispensing has validity in its own venue (like a
liquor store) but I see no cognizable reason that this controlled substance
shouldn’t be regulated similar to other recognized drugs. Under the Controlled
Substance Act, pharmacists cannot dispense marijuana. The drug cannot be used
in pharmacies because pharmacists are federally registered and would lose their
license if they distributed a Schedule I drug. The legislature needs to remove
the drug from Schedule I and then pharmacies should be able to utilize the
drug. Removal will also allow the drug to have better access to grants and
research (Research which the Utah legislature is already encouraging via HB 197
passed this year. Also, good to mention the Utah legislature also passed HB 195
which makes medical marijuana legal for terminally ill patients. So Utah is actually
pretty with it already and shows it is capable of making good marijuana laws). It
may take years to make these changes at the federal level but unwinding the
creation of dispensaries is nearly impossible.
There are many legal complications related to granting dispensary
licenses and then taking away those rights and requiring pharmacy distribution
in the future. Unlike the 15 dispensaries which the Libertas
Institute predicts, there is valid potential for 39 dispensaries. There are
29 counties (according to my 4th grade Utah counties knowledge). A
license for one dispensary in each county will be allowed and additional licenses in
other counties based on population (7 in Salt Lake, 4 in Utah, 2 in Davis). A total
of 39 dispensary locations will be allowed immediately in Utah. Side note: In Arizona,
there was a legal change 4 years after the initiative passed which allowed
transfer of those licenses into other jurisdictions. This transfer and eventual
crowding in populated cities is not explicitly prevented by the Utah law.
The millions of dollars which are being used by national marijuana
lobbying firms are completely intended to create recreational marijuana and are
only pretending under the guise of medical needs for now. I wish these lobbyists
spent resources lobbying for changes to the CSA as opposed to creating a billion-dollar
industry under the guise of medical needs.
Next, the Church of Jesus Christ of Latter-Day Saints inquiry
into the law revealed that enforcement of existing federal and state laws have
inherent difficulties including police officers not being able to dispute
illegal marijuana use so long as the user retains evidence that the user bought
at least some marijuana from a licensed dispensary. Additionally, the
affirmative defense provision in 58-37-3.7(1) is unnecessary and has a
potentially disastrous effect of allowing a large amount of abusers to
circumnavigate the existing law. If the existing law is harming teens and
ruining peoples work opportunities, then let’s show that is what is happening.
I don’t see the need to have this provision. If a child with epilepsy or an
elderly person with cancer has been illegally using marijuana then I find no
evidence that Utah prosecutors have been locking them up, even if the current
law technically allows them to (to quote the Libertas article: “Numerous states
have plowed this ground already, and no federal crackdown on cancer patients
(for example) is occurring.”).
Also, research on medical use of marijuana is still fresh
and is largely being performed by active proponents of marijuana use. The
ability to amend this initiative in the future is difficult. The Utah
initiative proposed creation of a Cannaboid Product Board but it limits the
board’s ability to modify qualifying illnesses even if those illnesses are
determined to be dangerous or ineffective.
Lastly, the law does not provide clear direction on what
should be done with the fees. In Arizona, this has been a major issue because
there currently is a nearly $40 million budget surplus for card fees that
cannot be utilized. The Utah law needs to make clear that funds from fees can
be redirected to marijuana research, programs that assist drug dependents
including opioid abusers, etc. Arizona’s Attorney General issued a worthwhile opinion on this
matter.
In conclusion, I do believe in principles of
deregulation and individual agency. Importantly, I also value the ability to
vote and help form the society which we live in including optimizing the health
of our society. Therefore, I am likely to vote against pro-marijuana initiatives
because I believe it overall is harmful to society and I encourage Utah
citizens to do the same.
