Big Deal in Utah: Prop. 2 Abandoned in Favor of Compromise Bill

In this March 25, 2014, file photo, Utah's Gov. Gary Herbert, center, looks on during the H.B.105 bill signing ceremony at the state Capitol, in Salt Lake City. The Mormon church is backing a deal that would legalize medical marijuana in conservative Utah after months of fierce debate. The church is joining lawmakers, the governor and advocates in a deal Thursday, Oct. 4, 2018, to push medical marijuana forward, even if a November ballot initiative fails. Gov. Gary Herbert says he'll call lawmakers into a special session after the midterm election to pass the compromise into law. (Rick Bowmer, File/AP)

One month before Utah voters consider the state’s first attempt to legalize medical marijuana, key backers of the measure are abandoning their support for Proposition 2. Instead, they’re committing to work together with Gov. Gary Herbert, legislative leaders, religious leaders, and the Utah Medical Association to pass a compromise bill, the Utah Medical Cannabis Act, in early 2019.

Gov. Herbert promises to pass the Utah Medical Cannabis Act in early 2019, regardless of the Prop. 2 vote in November.

In an unusual announcement on Thursday, Gov. Herbert announced that the state legislature would consider and pass a comprehensive medical marijuana bill in the upcoming session, regardless of the outcome of the Nov. 6 election.

The compromise has been in the works for about four weeks. Herbert said everyone involved on all sides of the issue “wants to find ways to help people alleviate pain and suffering.”

“There’s also been an interest in making sure that in doing so,” Herbert added, “we don’t have any intended or unintended consequences or abuse of the system put in place.”

The details in the agreement can be found here, where they’re compared to the rules set forth in Prop. 2.

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Prop. 2 Forced Lawmakers To Act

Over the past three years, state legislators have attempted and failed to pass a medical marijuana legalization measure. Prop. 2 was a response to that failure—proponents grew tired of waiting for lawmakers in Salt Lake City to act, so they put the measure before voters. Once Prop. 2 made the ballot, voters expressed overwhelming support. Polls were showing 64% of voters in favor of the measure, with 33% opposing and only 2% undecided.

Faced with that pressure, Herbert and state lawmakers realized the voters were likely to take the law out of their hands on Nov. 6, and pass a measure that was powerful but imperfect.

“The intiative process is not quite as precise” as the legislative process when it comes to crafting good laws, Herbert said. “With Prop. 2, there are some legitimate concerns about its implementation and its possible consequences.”

Herbert addressed the media in Salt Lake City earlier today, as captured in the video below:

Advocates OK With the Plan

Utah’s leading medical marijuana patient advocates signed off on the deal.

Matthew Schweich, deputy director of the Marijuana Policy Project (MPP), said his group struck a deal in order to move forward with all parties on board.

“While it is difficult to walk away from a campaign after 18 months of hard work, this deal is undoubtedly a victory for Utah patients and their families,” Schweich said in a prepared statement. “In Utah, a statutory ballot initiative can be amended or even repealed by a simple majority in the Legislature. If Proposition 2 passed without any agreement on next steps, patients may have been left waiting years to access legal medical cannabis. This compromise eliminates that uncertainty and ensures legislative leaders are committed to making the law work.”

No Home Grow, Fewer Dispensaries

According to MPP leaders, the compromise bill differs in a number of ways from Prop. 2. Unlike Prop. 2, the proposed bill does not allow home cultivation. The bill would allow fewer dispensaries than Prop. 2, and would add several regulations, including dosage requirements.

“This is a new development, and we have to pivot when there are new strategies,” said Connor Boyack, treasurer of the Utah Patients Coalition. “We established some ground principles, and that allowed for some very direct conversations. It took a long time. There’s a lot of distrust and a lot of frustration. But at the end of the day, there’s a lot of opportunity to have a mutual understanding with the opposition about where we’re at and where we can potentially get.”

Some Patients Are Skeptical

Leaders on all sides were marching behind the compromise bill today in Salt Lake City, but many patients and advocates around the state expressed shock and concern. These were some typical reactions on the Yes On 2 Facebook page this afternoon:

Here’s What’s in the Compromise Bill

The Libertas Institute prepared a highlight sheet of the proposed compromise bill, reprinted below.

Condition list

  • Hospice is added as a new condition
  • Terminal illness with less than six 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 weeks that hasn’t substantially responded to non-opioid medication or physical treatment

Dispensaries

  • Minors are not allowed inside
  • ID card must be provided
  • Must employ one 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 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; you must try, and not succeed with, two other methods before attempting this one
  • Maximum possession limit is a 30-day supply (four ounces flower or 20 grams THC in cannabis products)

Physicians

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

Triggers

  • Affirmative defense is extended through January 1, 2021 when medical cannabis pharmacies must be operational; only applies if you had a pre-existing diagnoses from a physician who believed you 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 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