Improvements in the Medical Cannabis “Compromise”

In the wake of Prop 2’s passage—a result we are thrilled about and have worked for years to achieve—there’s a lot of confusion about why the Legislature is considering a so-called “compromise.”

First, many people seem to believe that the ballot initiative is untouchable—that the Legislature has to leave it alone. Not so. Utah law allows legislators to amend or even repeal a ballot initiative; there’s nothing to protect it.

So, knowing that legislative leadership strongly disliked Prop 2, along with the Governor, law enforcement, the LDS Church, the Utah Medical Association, etc., we entered into negotiations and came up with an agreement that resolves the chief concerns while keeping a broad, functional patient program in place—and earning the endorsement of nearly all of Prop 2’s opposition.

And while we don’t love how everything ended up, this path secures a stable long term future for patients, rather than gambling their fate on the political uncertainties of hostile battle for years to come.

Critics are quick to suggest that this new proposal is substantially worse for patients than Prop 2. And yet, Americans for Safe Access—a national medical cannabis advocacy organization—scored both legal proposals and found that the agreement was only 4% worse on their scoring index compared to Prop 2. That’s hardly the drastic difference some are suggesting.

But it gets even more interesting. Upon review of ASA’s analysis of the proposal, it became quickly evident that they misunderstood what was actually in the new draft. Several key areas of their scoring metric were incorrect. For example, they penalized the proposal for allowing access to raw flower only “after a patient has failed to respond to two other medical cannabis forms.” But that’s not at all in the proposal. Other similar errors exist.

When these errors are corrected, the new proposal is only a 1% reduction on ASA’s index—even less of a drastic difference. And, in our view, a 1% tradeoff is worth it if it brings the blessing of the entire opposition and helps remove regulatory roadblocks that might prevent implementation from moving forward without complication and intrigue.

What should we call this proposal? Some have called it a “replacement bill” while most are calling it a compromise.

But is it a compromise?

This word implies taking Prop 2 and watering it down somewhere in the middle. And while several key aspects do result in less than what Prop 2 had—take the number of dispensaries, for example—this cannot be said of the entire proposal.

So here are ten ways in which the proposed agreement, being considered by legislators in a special session on December 3, is actually an improvement on Prop 2.

  • Under Prop 2, patients have an affirmative defense—a legal protection to use cannabis medicinally—until July 1, 2020, when the card system is required to be operational. Yet dispensaries aren’t required to be open until January 1, 2021—that’s when the “grow your own” provision kicks in. This means there are seven months when patients are not protected.

    This oversight in our drafting leaves patients in an awkward position, because if dispensaries aren’t open until, say, December, then that’s several months when they lose legal protections. The new agreement fixes this by extending the affirmative defense until January 1, 2021.
  • Many firearms owners are rightly concerned about the federal enforcement of laws governing the acquisition of firearms by those using a Schedule I substance. Prop 2 was silent on this matter.

    The new agreement includes language that prohibits state and local law enforcement officers from enforcing a law that restricts a person’s “right to acquire, own, or possess a firearm” based on the person’s use of medical cannabis. So, while the feds can enforce their own laws (which they’re unlikely to do), Utah officers are now handcuffed—restrained from helping in any way.
  • Medical users are rightly concerned about how their employer might treat their legal use of cannabis. Prop 2 is silent on this issue as well.

    Utah is an “at will” work state. In other words, a person can generally be fired for any reason at any time; employees are not entitled to the jobs they have been offered by their employers.

    However, the government is different—and certainly can restrain itself on this matter. So, the agreement contains language that prevents state and local governments from firing, suspending, or taking adverse employment actions against an individual because of their use of medical cannabis. Police officers, bureaucrats, firefighters, librarians—these and more will be protected in their legal use of medical cannabis.
  • Prop 2’s qualifying condition list included chronic pain, so long as the doctor determined the patient to be at risk of becoming chemically dependent on, or overdosing on, an opiate. The individual would also qualify if they were allergic to, or unable to medically use, opiates.

    Chronic pain is improved in the agreement by eliminating opioids entirely from the equation. Pain lasting longer than two weeks now qualifies if a non-opioid did not resolve the pain; patients are no longer required to have any interaction with or consideration for opioids.

    Additionally, two qualifying conditions were added: a terminal illness with less than six months of life expectancy (which was approved in a bill earlier this year that Prop 2 would have repealed), and any condition that results in the person receiving hospice care.
  • While we disagreed with this contention, critics of Prop 2 claimed that the ballot initiative would override the retail CBD law that was passed by the Legislature earlier this year.

    Though the proposal repeals the Legislature’s earlier medical cannabis programs—now that a broader one is in place—it explicitly leaves in place the retail CBD law, allowing CBD-only products to be sold over the counter.
  • Prop 2 contains provisions protecting parents from adverse actions against them and their minor children by the Division of Child and Family Services.

    The proposal expands on this by creating similar protections for parents and caretakers of “vulnerable adults”—the legal definition of an adult-age individual with mental or physical impairment. Now, parents or guardians of such persons can legally use medical cannabis without fear of adverse legal action for doing so.
  • Prop 2 prohibits individuals from being a caregiver (purchasing and transporting cannabis to a patient) if they have committed a felony in the past seven years.

    The proposal reduces this to two years, and narrows it only to crimes (both felony and misdemeanor) pertaining to drug distribution.
  • Prop 2 had a “grow your own” trigger should the bureaucracy have dragged its feet and not allowed dispensaries to operate by January of 2021. While this provision was never intended to actually become utilized, it was put in place as an insurance policy for patients.

    The proposal changes this trigger to instead be medical decriminalization; after that date, prosecutors cannot even file charges against medical cannabis patients. And while some patients are upset they will have lost the ability to cultivate their own plants, the new provision (should it ever be triggered) would likely be utilized by far more patients, most of whom have no clue how or desire to grow cannabis plants.
  • Two lawsuits have been filed against Prop 2. In the most recent iteration, Walter Plumb has sued based on a provision that protects patients from being evicted by their landlord for being a medical cannabis patient. Claiming religious infringement among other things, Plumb has used this provision to try and frustrate the entire ballot initiative.

    The proposal has a severability clause, effectively a legal declaration to ensure that if any provision is held unconstitutional by a court of law (for example, the landlord provision), then the rest of the proposal remains effective without the invalidated provision.
  • While liability protections were given to physicians under Prop 2 for recommending treatment with medical cannabis, there was uncertainty by some physicians that the protections would extend to the affirmative defense phase of the law, prior to having a system set up in which recommendations could be officially and legally made.

    The proposal explicitly extends the liability protection to the affirmative defense phase, ensuring that doctors who recommend the use of medical cannabis to their patients will not be held civilly or criminally liable for that recommendation merely because cannabis is a federally illegal Schedule I substance.

Like any law—especially a major one creating a brand new program with many moving, interoperable parts—Prop 2 is subject to amendment, and likely to be refined over time.

While we have serious concerns about several aspects of the proposed agreement, we feel on the whole it creates a workable program that can get patients what they need while resolving the concerns of critics. These aspects listed above are among the ways in which improvements are being made. More will no doubt follow in the future.