Medical Marijuana in the Mormon State: Exploring the Merits of Utah's Proposition 2

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 4^th 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.