Personal Freedom

A Rebuttal of Kirton McConkie’s Analysis of the Utah Medical Cannabis Act

The Church of Jesus Christ of Latter-day Saints recently commissioned its retained law firm, Kirton McConkie, to provide what they call a “legal analysis” of the proposed initiative, that they wrongly title the “Utah Medical Marijuana Initiative.”

The LDS Church’s statement that accompanies the analysis argues that it reveals “grave concerns” and illustrates “serious adverse consequences that could follow” if the initiative became law.

The analysis does neither of these things.

The document offered by Kirton McConkie is, rather, a poor attempt to provide biased assertions and misleading talking points to what Americans for Safe Access has called “among the nation’s most conservative” medical cannabis laws, further saturating the debate with fear-based claims about this important issue.

Libertas Institute has been involved in the drafting of this proposal for several years, first with Senator Madsen and later with the Utah Patients Coalition. Roughly 95% of the language in the initiative comes from the bill considered by the Legislature. We have a deep understanding of the proposals — and their purpose and motive — so we are well situated to respond to the claims made against them.

Let’s begin, addressing each of Kirton McConkie’s claims one at a time. Each of their claims appear in quotes and bold text.

“The Marijuana Initiative Will Allow Some People to Grow Their Own Marijuana”

The LDS Church and Kirton McConkie (hereafter jointly referred to as “LDS/KM”) state that people with medical cannabis cards who live more than 100 miles from a cannabis dispensary “would be allowed to grow ‘up to six cannabis plants for personal medical use'” and that the proposed law does not allow the state to license or monitor “homegrown marijuana operations.”

The ballot initiative proposal (hereafter referred to as the “initiative”) does not allow homegrown operations. Even under the scenario described — if the state refuses to license dispensaries, and thus Utahns have no dispensary within 100 miles from which to obtain their medicine — it specifically states that cannabis plants may not be grown in residential areas. So it is quite misleading to state that these plants would be homegrown.

And this provision was only included as an “insurance policy” of sorts, to encourage the government to comply with the will of the voters and allow dispensaries to obtain licenses to operate. Why? Because in some states after the voters passed a new law, the bureaucrats dragged their feet and refused to comply, stalling the regulatory program for years — to the detriment of patients.

Advocates didn’t want that happening in Utah, so this provision was included to ensure that if it did happen, patients could get access to their medicine legally. And if the government didn’t want it to happen, all they have to do is comply with the law. Then, there will be dispensaries scattered throughout the state, and nobody will live in any area in which there is not a dispensary within 100 miles.

“The Marijuana Initiative Will Allow People Who Grow Their Own Marijuana to Evade Purchase and Use Limits”

LDS/KM claims that the initiative says patients would be able to purchase up to two ounces of cannabis every 14 days, but that it does not prevent a person who is authorized to “grow his own marijuana from consuming more than that from his own home-grown plants (which can be very large)…”

Again, it’s not “home-grown.” And this provision is unlikely to ever be triggered — that is, unless the government violates the law and does not allow dispensaries to be set up. This concern evaporates so long as the law is followed, leading to licensed dispensaries within 100 miles of nearly every medical cannabis cardholder in the state.

“The Marijuana Initiative Will Create Significant Challenges for Law Enforcement”

Law enforcement executives have consistently opposed our efforts to legalize medical cannabis, whether legislatively or now through the initiative. LDS/KM claims that officers “will have no way to distinguish between personally-grown legal marijuana and illegal marijuana” or distinguish “illegally purchased marijuana from legally purchased marijuana.”

The first concern, again, goes away as long as dispensaries are allowed to set up shop.

The second concern is rather silly; the initiative includes a database to track all cannabis plants and purchases, and any officer suspicious of one’s cannabis possession can verify that 1) the person has a legal medical card authorized by a physician; and 2) the patient actually purchased the cannabis from a dispensary as allowed under the law.

LDS/KM also claims that “in any event, the fine for someone who does not have the card or label is only $100.” Yes, precisely. Patients should not be subjected to heavy criminal punishment merely because they forgot to carry their card or transferred their medicine to another container and no longer have the original label. And cannabis obtained illegally is still subject to a class B misdemeanor, which carries a penalty of a fine up to $1,000 and up to six months in jail.

“The Marijuana Initiative Requires Medical Marijuana to Be Sold Through Marijuana Dispensaries, Not Licensed Pharmacies”

LDS/KM claims, “marijuana would be the only serious controlled substance in Utah sold for alleged medicinal purposes without a prescription and outside of licensed pharmacies.”

This is only because of the federal government’s classification of cannabis as a Schedule I substance. It’s effectively illegal under federal law, therefore pharmacies — because of federal law — cannot provide it to the public for purchase. A Schedule I designation means that it “has no currently accepted medical use” and a “high potential for abuse.”

This is why states legalizing the medical use of cannabis have to establish institutions outside of the pharmacy system through which the substance can be bought and sold. The same applies here in Utah with the initiative.

Of course, we would welcome a rescheduling of cannabis (since this classification is outright stupid) and the option to dispense cannabis and its derivatives through the pharmacy system. Because that is not currently an option, and because it appears to not be changing anytime soon, patients with urgent needs must be afforded another option. Thus, dispensaries.

“The Marijuana Initiative Requires the State to Destroy Records of Cannabis Sales after 60 Days, which Will Hamper Law Enforcement”

LDS/KM claims that pharmacies are “subject to strict record keeping” and must keep said records “for at least five years.” The “Marijuana Initiative,” as LDS/KM pejoratively calls it, “does not impose these requirements on cannabis production establishments or dispensaries.” In these cases, the Department of Health is ordered to destroy records within 60 days.

This is intentional. Why? Again, because cannabis is a Schedule I substance and thus illegal for this type of use under federal law. Initiative proponents do not want the federal government to have a lengthy list of people violating federal law, and therefore those records should be destroyed after two months.

In that 60-day window, law enforcement can investigate and preserve evidence that is discovered for use in subsequent prosecution. But the government should not be given a treasure trove of patient documentation of violations of federal law, thus for law-abiding people not guilty of any crime, the records should be removed on a rolling basis to protect them from the very law enforcement that LDS/KM seems intent on supporting so strongly.

As LDS/KM’s headline concedes, the records to be purged deal only with cannabis sales for medical patients—not other records kept by growers, inspectors, cultivators, and dispensaries. It’s a narrow provision designed to protect the privacy of patients whose personal data law enforcement does not forever need.

“The Marijuana Initiative Allows Dispensaries to Give Free Samples to Medical Cannabis Cardholders”

LDS/KM claims that “This will encourage marijuana use.”

What does the initiative actually say?

“A cannabis dispensary may give to an individual with a medical cannabis card, at no cost, a product that the cannabis dispensary is allowed to sell…”

This provision was designed to allow low/no-income patients to access medicine from dispensaries who wish to offer it to them on a charitable basis. Of course, nobody may get cannabis this way without a medical card. So once the person’s medical need is established, why does LDS/KM care whether the person obtains their medicine by paying money or not?

If they’re a verified patient, leave them alone — don’t criminalize the use of cannabis merely because it was provided to the sick person for free.

“Under the Marijuana Initiative, Large Numbers of Utahans Will Likely Qualify for Medical Cannabis Cards”

LDS/KM concedes that the initiative only allows medical cannabis for Utah residents whose physicians diagnose them with a qualifying illness. Yet they then say that the list of qualifying illness “includes conditions that are difficult to diagnose and can afflict many people in varying degrees.” Their analysis also states that the physician “must only believe that the patient ‘may benefit’ from marijuana” and that the “Department of Health does not have discretion to deny a medical cannabis card.”

Let’s start with the last item first. If a physician believes that cannabis will help their patient, of course, we don’t want a bureaucrat without any medical training to be able to arbitrarily deny that patient their medicine. This point is so simple and straightforward that we wonder why it’s included in a list of “grave concerns” LDS/KM has with the initiative.

And physicians aren’t fortune tellers; they can’t conclude with certainty that cannabis will benefit their patient. Each person’s situation is different, and cannabis can help some people with a certain condition while others with that condition don’t find that same relief. (And at least if they try the medication they won’t get addicted or die — unlike the numerous pharmaceutical drugs LDS/KM evidently has no objection to doctors offering their patients.)

As for the qualifying list, there is ample evidence that the list of conditions included in the initiative can be alleviated or helped when using cannabis. Sure, such conditions may “afflict many people in varying degrees,” but what’s important is letting a patient and physician together ascertain what might help, rather than denying them the opportunity by criminalizing cannabis completely. Patients and physicians should have the freedom to pursue medical opportunities together — and that’s the goal of the initiative.

“The Marijuana Initiative Allows a Person With a Criminal Background, Including Drug Convictions, to Get a Medical Cannabis Card”

“There is no restriction for prior convictions,” LDS/KM argues.

Absolutely. Why should sick people be criminally deprived of medicine that can help them merely because they shoplifted or got into a fistfight years ago, for example? Convicts can have opiates, so why not (safer) cannabis? Cancer, epilepsy, and other conditions afflict sinners and saints alike.

“The Marijuana Initiative Allows Marijuana Use for Conditions That Are Common but Difficult to Verify and Diagnose”

LDS/KM claims that “chronic or debilitating pain” is “hard to diagnose and verify,” presumably in an effort to suggest it should not be included at all in the list of qualifying conditions. While it is no doubt difficult to diagnose, to suggest that chronic pain patients should be deprived of a medical regimen that can help them is rather odd.

The insinuation, however, is that people will deceptively argue to their doctor that they are experiencing chronic pain in an effort to obtain a medical cannabis card, when in fact they do not suffer from chronic pain — at least, to a degree that merits using cannabis.

This will of course happen. It does currently, with opiates. Does LDS/KM believe that opiates should be banned for use from all legitimate patients because some people claim their back hurts when it in fact does not? Does abuse by some give cause to deprive others of a medicine they need? We argue it does not; any system can and will be abused. Patients who legitimately need cannabis to alleviate their pain should not be denied because some may abuse the system.

“The Marijuana Initiative Allows Patients to Get a Recommendation from a Physician Based on a One-time Visit”

LDS/KM claims, “Nothing in the Initiative requires the physician who refers a patient for a medical cannabis card to have a prior relationship with the patient, to review the patient’s medical records, or to schedule a follow-up visit to see how the treatment is working.”

And yet, the initiative clearly states: “A physician may recommend cannabis to an individual under this chapter only in the course of a physician-patient relationship after the physician has completed a full assessment of the patient’s condition and medical history.” The intent of this language is to ensure a pre-existing relationship, not a spontaneous one at the time of the visit in which a medical cannabis card is sought. Should the language not suffice, agency regulations created after the initiative’s passage (or an amendment to the statute itself) can clarify this point further.

LDS/KM further states that “nothing in the Marijuana Initiative prevents a patient from going to a different physician every six months to get a renewal recommendation.” However, physicians have access to a database that shows the “purchase history of cannabis or a cannabis product by a medical cannabis card holder, including the time and date of the purchase, the quantity and type of cannabis or cannabis product purchased” to see past use and recommendations from other physicians.

The initiative also states that “a physician who recommends treatment with medical cannabis to an individual or minor shall… before recommending cannabis or a cannabis product, look up the individual in the controlled substance database” in order to review past drug use.

It’s odd that LDS/KM wants a prior relationship, a record review, and follow-up visits for recommending cannabis, but no concern is shared for opiates being able to be prescribed without any of these things. Two dozen Utahns are dying a month from these FDA-approved drugs, which can be prescribed to patients by a physician seeing the patient for the first time. The inconsistency in demanding a different process for far-safer cannabis is striking.

“The Marijuana Initiative Will Allow a Small Number of Physicians to Give a Large Number of Recommendations”

LDS/KM notes that physicians can recommend cannabis for up to 20% of their patients, and specialized physicians (for certain of the qualifying conditions) can recommend cannabis to an unlimited number.

No physician is compelled to recommend cannabis, and many will not. And like other alternative options, there will likely be a smaller percentage of physicians who actively recommend this option for their patients. It may very well be that the largest employer of physicians in Utah, Intermountain Healthcare, decides to prohibit their employees from recommending cannabis. Because of these concerns, other licensed physicians must retain the ability to satisfy the legitimate demand of sick patients who believe that cannabis can help them.

Law enforcement retains the ability to identify, in the database, which physicians recommend cannabis for which patient. Any concerns about abuse or malpractice can be resolved through existing investigatory procedures.

“The Marijuana Initiative Does Not Require Physicians Providing a Recommendation to Have Any Training or Experience with the Effects of Marijuana or Even the Illness Being Treated”

As LDS/KM notes, those who can prescribe Schedule II controlled substances — including deadly opioids — are allowed under the initiative to recommend far-safer cannabis. Physicians who choose to recommend cannabis can seek continuing education on the issue from a number of organizations or review ample medical literature that speaks to the benefits and risks of cannabis.

The information is abundantly available for those who seek it; the initiative does not compel arbitrary “training or experience” prior to allowing physicians to offer their professional view that their patient can benefit from this option that is less addictive, less deadly, and potentially more effective than existing pharmaceutical options.

Doctors aren’t required to “have any training or experience” before prescribing deadly prescription drugs. So why the double standard? If LDS/KM desires training or experience before giving a patient a drug, then let’s at least be consistent — or begin with the deadly options before targeting far-safer cannabis.

Also of note: the American Medical Association (who, alongside their state affiliate, has fought the initiative with their substantial financial resources) has opposed efforts to require physicians to be trained before prescribing opioids.

“The Marijuana Initiative Does Not Require a Prescription”

“The Initiative does not require that the physician prescribe a specific dosage, and continued use is not determined by the effectiveness of the treatment,” LDS/KM writes.

Because of federal law, physicians are not legally allowed to write a prescription for cannabis. However, physicians are protected by the First Amendment to discuss the risks and benefits of cannabis and recommend its use to patients.

The initiative does not require specific dosages, because the First Amendment does not protect speech that goes so far as to aid or abet commission of a federal crime. But there are best practices developed that physicians can encourage their patients to follow in order to determine the right cannabinoid composition and amount that will alleviate their symptoms or treat their condition.

Unlike many pharmaceutical drugs, cannabis has a very wide margin between the effective dose and overdose amounts. With opiates, for example, very specific dosing is needed to ensure a patient can get relief while minimizing the chance they become addicted and/or overdose on the drug. The risk of addiction and overdose on cannabis is so minimal that the dosage process is less stringent and therefore not strictly mandated under threat of criminal punishment in the initiative.

“The Marijuana Initiative Does Not Require Monitoring of the Medical Effects of Marijuana Usage on Particular Patients”

LDS/KM writes, “Unlike other legal drugs, which are closely monitored for adverse effects and interactions prior to being made generally available to the public, the Initiative bypasses the normal scientific processes designed to ensure that patients are properly protected.”

The LDS Church’s stated position is that “The public interest is best served when all new drugs designed to relieve suffering and illness and the procedures by which they are made available to the public undergo the scrutiny of medical scientists and official approval bodies.”

First off, cannabis is not a “new drug.” It has been used for thousands of years. It was previously used in numerous medications. In fact, medical cannabis has previously been an option in Utah; a century ago, the legislature enacted a law that allowed for its medical use if a physician signed off on it.

But to suggest that a medical treatment option should be criminally prohibited merely because it does not follow the same “scrutiny of medical scientists and official approval bodies” as newly invented molecules and chemical derivatives is wrong — especially since this previously studied and supported medical option was not criminalized due to any scientific finding of any sort.

The placement of cannabis onto the Schedule I list was an action based on fear, racism, and protectionism — not science. In fact, it was the American Medical Association that fought Congress’ efforts to begin punishing the use of cannabis decades ago.

While we do not oppose FDA review of cannabis products and additional scientific research by any means, we have repeatedly maintained that these efforts can be pursued concurrently with patient access. Sick Utahns should not be criminalized as they wait for researchers and bureaucrats to satisfy themselves about a plant-based medicine that does not kill those who use it.

“The Marijuana Initiative Prohibits Accountability for Physicians”

LDS/KM argues that the initiative “prohibits any kind of civil or criminal liability, or even licensure sanctions, against any physician who recommends treatment with cannabis.”

What the initiative actually states is that “a physician who recommends treatment with cannabis or a cannabis product to an individual in accordance with this chapter may not, based on the recommendation, be subject to civil liability, criminal liability, or licensure sanctions…”

The intent here is to shield physicians from legal consequence for merely recommending cannabis, since physicians are subject to federal law and are not allowed to prescribe a Schedule I substance to their patients. A “recommendation” is instead used as the method of authorization, as this is tied to the doctor’s right to free speech. Exercising that speech should not be the basis of civil or criminal liability, or licensure sanctions.

Medical boards can still enforce other things not dealing with the recommendation—for example, not following the proper standard of care or for recommending cannabis without proper evaluation.

“The Marijuana Initiative Allows Minors to Use Medical Marijuana”

LDS/KM simply states their concern that “a parent or guardian can get a medical cannabis card if his or her child has a ‘qualifying illness.'”

Indeed. This is one of the main goals of the initiative—we want both children and adults to have safer, alternative treatment options to manage their debilitating illnesses. Epilepsy and other conditions can begin at any age, and FDA-approved drugs do not always control the symptoms children experience. Many physicians want their young patients to access this treatment but the law does not currently allow it.

Children are routinely prescribed opioids, benzodiazepines, antidepressants, and other drugs.The FDA approved OxyContin for kids as young as 11.  Many children are heavily medicated with Ritalin and Adderall — a drug that is basically legal meth. If these options are routinely offered to children, complete with their dependency and substantial side effects, why not cannabis—a safer option?

“The Marijuana Initiative Will Make Marijuana More Accessible to Minors”

LDS/KM cites a federal government report claiming that “marijuana usage among children ages 12-17 (and adults ages 18-25) is generally significantly higher in states that have legalized recreational and medicinal use.”

And yet that’s not entirely accurate. Indeed, Colorado’s Department of Public Health and Environment reported (in a state with recreational use, not merely medical) that the rate of cannabis consumption among adolescents “has not changed since legalization either in terms of the number of people using or the frequency of use among users.” And a study in Washington state notes that teen cannabis consumption decreased or remained steady since legalization — again, in a state allowing broader recreational use.

But let’s assume for a moment that LDS/KM’s contention is accurate — namely, that legalizing medical cannabis will lead to an uptick in teen use. Is this still a reason to criminalize patients? Should cannabis be entirely prohibited merely because some teens will improperly use it? We think there is only one reasonable answer to these questions.

“If the Marijuana Initiative Passes, Most Users of Medical Marijuana Will Likely Be Younger People”

“While advocates of medical marijuana often portray the typical user as older and incurably ill, that has not been the case in states that have already legalized medical marijuana,” writes LDS/KM.

Actually, advocates in Utah have portrayed the “typical user” as children with seizures, if anything. And while there are many older Utahns who currently illegally use cannabis for medical purposes, or who wish to use it legally but currently abstain — see one of them in our video — it really doesn’t matter who is “portrayed” as a “typical user.”

What matters is that those who actually need this option, no matter their age, have the legal ability to do so without fear of criminal punishment.

“The Marijuana Initiative Immediately Legalizes Marijuana Possession Before Medical Cannabis Cards Are Distributed”

Opponents have been wrongly claiming that this provision — called an “affirmative defense” — would effectively legalize recreational use when passed into law. This is incorrect, as stated most recently by Salt Lake County District Attorney Sim Gill.

Here is what the initiative actually states: “Before July 1, 2020, it is an affirmative defense to criminal charges against an individual for the use, possession, or manufacture of marijuana, tetrahydrocannabinol, or marijuana drug paraphernalia under this chapter that the individual would be eligible for a medical cannabis card, and that the individuals conduct would have been lawful, after July 1, 2020.”

When voters cast their ballots in November, a majority will likely support this initiative. In so doing, they are sending a clear message to their government: stop criminalizing patients who use cannabis.

As such, it would be ridiculous to allow the government to continue criminalizing patients for a year or two while the bureaucracy takes its time setting up the regulations, the licensure process, the permit process, the database, etc. This “affirmative defense” (basically an option to defend against the government’s prosecution of a patient for cannabis use in court after the patient is arrested) was therefore created in order to legally protect patients who would qualify for a card but who simply cannot yet obtain one because the bureaucracy isn’t ready.

“The Marijuana Initiative Immediately Legalizes Possession By a Person With a Medical Marijuana Card from Another State”

“In other words,” writes LDS/KM, “Utah must honor medical marijuana cards issued by other states.” Why should Utah taxpayers be forced to pay for the investigation and prosecution of out of state visitors who are sick and use this same medicine?

Note that non-residents with a card from another state are not allowed to purchase items in Utah’s dispensaries. They are simply given protection if they are found with their medicine and the government attempts to prosecute them for possessing cannabis in Utah. If they are a legitimate medical patient, law enforcement should not waste their time — whether the person is a Utah resident or not.

“The Marijuana Initiative Prohibits Landlords from Refusing to Rent to Medical Marijuana Users”

LDS/KM claims, “The Initiative does not say whether landlords can prohibit the possession or use of marijuana on the premises.” And because the initiative is silent on the matter, this action is not prohibited and therefore allowed. The initiative does state:

“No landlord may refuse to lease to and may not otherwise penalize a person solely for the person’s status as a medical cannabis card holder, unless failing to do so would cause the landlord to lose a monetary or licensing-related benefit under federal law.”

This provision is intended to be consistent with other anti-discrimination activities imposed upon landlords. Under a similar argument, a person shouldn’t be ejected from their home merely because of the type of medicine they use.

It is odd that the LDS Church which supported anti-discrimination laws that prohibit landlords from evicting people because of their sexuality evidently wishes to allow landlords to evict people because they use a cannabis-based medication.

“The Marijuana Initiative Prohibits Local Zoning Ordinances Targeted at Marijuana Dispensaries”

LDS/KM observes that “Municipalities and counties cannot ‘enact a zoning ordinance that prohibits a cannabis dispensary from operating’ within their jurisdiction.”

And that’s all they say. (Many of the “concerns” raised in the analysis are merely simple statements about something in the initiative without any argument as to why it is a concern.)

Again, as with the other provisions of the initiative, this one is intentional and with good reason. Dispensaries should be treated as other drug stores or dispensaries. Cities retain the ability to restrict their locations and enforce distance requirements away from residential areas, schools, etc.

But cities should not be able to outright ban these businesses merely because they provide cannabis-based medicine. Patients should not be deprived of reasonable access to their medication merely because some elected officials don’t want a dispensary in their community, hence the prohibition on this discriminatory activity.

“The Marijuana Initiative Prohibits Local Law Enforcement from Cooperating With Federal Authorities Enforcing Federal Laws that Are Violated by Legal Use of Cannabis in Utah”

LDS/KM is apparently worried that “this could eventually affect distribution of federal law enforcement funds to Utah.”

Here is what the initiative states: “No law enforcement officer employed by an agency that receives state or local government funds shall expend any state or local resources, including the officer’s time, to effect any arrest or seizure of cannabis, or conduct any investigation, on the sole basis of activity the officer believes to constitute a violation of federal law if the officer has reason to believe that such activity is in compliance with the state medical cannabis laws, nor shall any such officer expend any state or local resources, including the officer’s time, to provide any information or logistical support related to such activity to any federal law enforcement authority or prosecuting entity.”

In other words, if a person is compliant with this state medical cannabis law, a police officer should not spend any time attempting to investigate, arrest, or punish that person because the activity is in violation of federal law (again, because of the Schedule I classification of cannabis). This is a rather common sense point, and basically the whole purpose of the initiative — to establish a legal framework in the state because of federal obstruction on this issue.

“The Marijuana Initiative Only Requires Cannabis Dispensaries to Be 300 feet (One Football Field) from Residential Neighborhoods and Only 600 Feet from Schools, Churches, Libraries, Parks, and Playgrounds”

“This is true even though federal law substantially increases penalties for distributing marijuana within 1,000 feet of schools and playgrounds,” notes LDS/KM.

This “penalty enhancement” for proximity to schools and playgrounds is something the Utah legislature recently addressed and reduced in the state’s recent criminal justice reforms, recognizing the absurdity of increasing the criminal penalty on a person merely because they happened to be located, say, 800 feet away from a park when selling their illegal drug.

We think it inappropriate to ban dispensaries from any close proximity to parks and residential areas, especially since the initiative requires them to operate a video recording system 24/7 (to which law enforcement has access) and only admit those with medical cannabis cards. A random building with a green cross on it (the only signage allowed in the initiative) that happens to be 700 feet away from a school (something that is unlikely, anyway, given current zoning layouts) is not really a concern.

It’s also important to note how few dispensaries there will be. We estimate that no more than 15 dispensaries will operate statewide. There is no reason to be concerned about proximity to homes and schools, especially with how few of these businesses there will be.

“The Marijuana Initiative Could Weaken Penalties for Causing Serious Bodily Injury while Operating a Vehicle Under the Influence of Marijuana”

LDS/KM points out that existing law makes it a second degree felony to negligently operate a motor vehicle while “having in the person’s body… marijuana, tetrahydrocannabinols, or equivalents.” They further claim that the initiative “appears to narrow this liability” to only those who ingest marijuana while operating a motor vehicle.

It is important to note that DUI laws remain enforceable if the initiative passes, and are governed under separate law. Those guilty of using cannabis and operating a vehicle are subject to a $1,000 fine, up to six months in jail, and a suspension of their license.

“The Marijuana Initiative Requires Science to Be Ignored”

Previous legislation has created a Cannabinoid Product Board comprised of physicians and medical researchers. The initiative ensures that this board’s activities cannot “limit the availability of cannabis” that is legally permitted by voters. Far from “requiring science to be ignored,” this merely restrains a bureaucratic panel from steamrolling the entire electorate.

Of course, we welcome additional scientific research and should the board identify causes of concern, they are welcome to publicly present their findings to elected officials and the public for debate and consideration to potentially amend the law in response.

“The Legislature May Choose Not to Remedy Unintended Consequences”

“State legislatures are often reluctant to amend or repeal ballot initiatives, choosing instead to respect the will of the people,” writes LDS/KM in another “legal issue.” And yet, this is purely a political issue—not legal.

Legally speaking, the legislature has every right and authority to amend or repeal the initiative. There is nothing, legally, that prevents an amendment to address any of these “concerns” in the LDS/KM analysis.

Rather, the legislature “may” choose not to change things (as their headline says), or might be “reluctant.” But it’s not impossible and certainly not illegal. And as we have privately expressed to many legislators, we’re happy to discuss concerns and bring advocates and patients together to see if any areas of improvement can be agreed upon by all sides, giving the legislature political cover for potentially changing language established by the ballot initiative.

Yet for all the “concerns” raised about intentional things the voters will support, we anticipate that that list of items of agreement will be rather short.

“Marijuana Cultivation, Distribution, and Possession are Federal Crimes with Stern Penalties”

“Congress criminalized the cultivation, distribution, and possession of marijuana,” says LDS/KM. They continue by pointing out what has already been stated — that “marijuana” is listed as a Schedule I substance, “alongside heroine [sic], methamphetamine, LSD, and mescaline.” LDS/KM then lists the many federal penalties that be imposed upon those who possess cannabis in violation of federal law.

None of this is a surprise. Numerous states have plowed this ground already, and no federal crackdown on cancer patients (for example) is occurring. The federal government’s heavy handedness is no reason for the state not to intercede on behalf of patients to protect their right to this natural treatment that can help them.

“The Marijuana Initiative Will Put Utahans at Serious Risk of Federal Prosecution”

LDS/KM points out that Attorney General Jeff Sessions, a notoriously stern prohibitionist, argues that “marijuana is a dangerous drug and that marijuana activity is a serious crime.” LDS/KM is worried that “federal prosecutors may now vigorously enforce federal marijuana laws” and that patients using medical cannabis pursuant to the initiative would “violate federal marijuana laws, which could result in prosecution and imprisonment.”

We are confused… LDS/KM is not opposed to current state laws that absolutely do allow for medical cannabis users to be prosecuted and imprisoned, yet they oppose passing the initiative because federal agents might prosecute and imprison medical cannabis users.

So which is it?

We think sick Utahns should be free to make a judgment call on their own. Let the federal government do whatever it’s going to do. But the initiative at least gets state police and prosecutors off of patients’ backs. That’s a good start.

“Gun Owners Who Rely on the Marijuana Initiative May Face Severe Federal Sentences”

LDS/KM notes that because of federal law, “a person with a concealed-carry permit who lawfully carries a firearm while relying on the marijuana initiative to possess or distribute marijuana risks years of mandatory imprisonment.”

This is a point of recent controversy and uncertainty as to whether the federal government will actually enforce the law against tens (hundreds?) of thousands of patients nationwide. It’s certainly not a reason to scuttle the entire initiative, merely because of an outdated federal statute that is unlikely to be prosecuted against medical cannabis users. Either way, the option and risk should be left to those individuals who want both firearms and cannabis for medical use. Giving them a choice is superior to denying them a choice out of worry for them potentially violating a federal law.

“Immigrants Who Rely on the Marijuana Initiative Could Harm Their Immigration Status”

LDS/KM writes, “Use or possession of marijuana can affect the immigrant if, for example, he or she applies for a green card, applies for citizenship, or travels outside the United States.” They cite the Immigrant Legal Resource Center’s argument that an immigrant’s use of medical cannabis violates federal law and therefore may “hurt their immigration status.”

As with the firearm response above, the initiative merely offers a choice and allows individuals to assess their personal risk in light of the continued federal criminalization of cannabis. The initiative itself does not cause this problem. Any immigrant who uses cannabis in violation of federal law now, or under any alternative cannabis law Utah could pass, would still bear this same risk so long as the federal government maintains a prohibition on the possession of cannabis. Thousands of sick Utahns should not be denied access to cannabis merely because a small handful of immigrants may face problems with their immigration status.


This weak, one-sided analysis attempting to undermine the initiative does not reveal “grave concerns” or illustrate “serious adverse consequences.” It does not speak to the strengths of the initiative, the protections offered to patients, the compelling need that exists, the medical refugees the status quo has created, the harm brought to Utah families by criminalizing their medicine, or the feasibility of the proposed regulations and the ability of law enforcement to adequately police the issue.

This so-called “legal analysis” is more like a political attack piece, designed to cast fear and confusion into a debate that is better treated with a good faith discussion about the reasonableness and intent of the initiative’s proposals.

The LDS Church argued that “The negative effects and consequences of marijuana use on individuals, families, and society at large are well-known.” We do not dispute that cannabis, like any substance, can be abused. Decades of criminalization has not reduced the supply, availability, and widespread use of illegal “marijuana.”

But what’s also well-known — and completely absent in LDS/KM’s analysis — are the “negative effects and consequences” of completely prohibiting a substance that can help many people, depriving Utahns of a medicine that can help heal them or forcing them to uproot their lives and separate themselves from their support systems to relocate to a state where the government won’t punish them for trying to improve their health.

Treating health concerns with the heavy hand of the criminal justice system absolutely has negative effects and consequences that the LDS/KM analysis is notably silent about. A balanced analysis might have also mentioned the following:

  • Utah has one of the highest opiate overdose rates, a tragedy that has resulted despite these drugs being FDA-tested and dispensed in pharmacies with strict controls and regulations in place.
  • Opiate overdose fatality rates decline substantially in states that legalize medical cannabis, presenting a real opportunity to save many lives in Utah.
  • Regulators are given authority under the initiative to enter the premises of a cannabis production facility or dispensary for inspection of their property and records at any time, without a warrant.
  • Legal medical cannabis will reduce black market demand for illegal “marijuana,” reducing the profits of drug cartels and providing patients tested medicine they do not have to purchase on the street in dangerous circumstances from drug dealers who might encourage them to purchase harder, more addictive substances.
  • Patients will no longer have to fear having their children removed from their home by the Division of Child and Family Services for using an illegal substance.
  • The initiative prohibits dispensaries and doctors from advertising — no billboards, no TV or radio ads, no internet ads, etc.
  • The number of dispensaries is substantially limited so that they will be sparsely located around the state.
  • Licenses may be revoked for any business owners who violate the law.
  • Smoking medical cannabis is prohibited, as is using it in public view.
  • …and much more that the “analysis” left out.

To us, the status quo of criminalizing patients is the only substantiated “grave concern” and presents daily, real, and unnecessary “serious adverse consequences” that should be remedied. For that reason, we have worked for several years — through the legislature and now through the initiative process — to remedy a profound injustice that criminalizes patients.

We welcome reasonable, good faith discussion on the merits of the initiative but find little substance in this analysis, whose odd timing mere days before a deadline to remove signatures from the petition suggests that this is not so much a legal analysis as it is a political hit piece commissioned with the intent to paint only a one-sided picture of the issue.

Advocates have been seeking opportunities for several years to present material to LDS Church leaders that might lead to productive dialogue on this issue. We reaffirm our willingness to engage in a discussion in which all sides can be heard and where suffering Latter-day Saints can explain the harm caused by both the status quo and the Church’s ongoing opposition to efforts to change the law. Whatever the outcome of the certification of the ballot initiative, we hope that these discussions can take place and that public statements and decisions can be the byproduct of input not just from a few lawyers, but from Utahns deeply affected by this issue.