Utah ‘measurable amount’ drug statute ruled unconstitutional

January 21, 2016  |  Posted in: Center for Individual Liberty  |  17 comments

Earlier this month, a Utah court of appeals ruled in State v. Ainsworth that the penalties under the state’s Controlled Substance Act, which criminalize having “any measurable amount” of a controlled substance in your body, are unconstitutional. This is because the law penalizes the same conduct worse than the DUI statute and is thus unconstitutional as it violates the uniform operation of laws provision of the Utah Constitution.

As the court wrote, “there does not appear to be any rational basis for punishing individuals who have ‘any measurable amount’ of controlled substance in their bodies more harshly than individuals who have an incapacitating amount of the substance in their bodies.” The court went on to rule that there is no “rational basis for charging users of nonprescribed Schedule I or II controlled substances who have a measurable amount of controlled substance in their body, but not enough to render them incapable of safely operating a motor vehicle, with a higher-degree crime than users of nonprescribed Schedule I or II controlled substances who have so much controlled substance in their body that they are demonstrably unsafe to operate a vehicle. Thus, we agree… that the second-degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution.”

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SB73: The Utah Medical Cannabis Act

January 19, 2016  |  Posted in:  |  20 comments

This bill passed the Senate on a 17-12 vote but failed in a House committee on a 4-8 vote.

Libertas Institute supports this bill.

Senator Mark Madsen has sponsored legislation that would allow patients suffering from a few conditions to possess and use cannabis, with a doctor’s approval and recommendation. Senate Bill 73 would prohibit smoking, but allow the individual to ingest cannabis for relief or treatment through an oil, topical, vapor, or edible.

Last year, Senator Madsen attempted to legalize medical cannabis; the bill failed by a single vote in the Senate. This year’s bill is significantly different, and much more highly regulated—crafted with input from state agencies and regulators, patients, industry representatives, and advocates. It crafts the right approach in opening up a tightly regulated marketplace for this medicine, while providing a safe harbor to sick and suffering Utahns who should not be subjected to the criminal justice system.

Below is a detailed summary of the bill, broken down by category, with line numbers in the bill provided for reference.

Doctor Involvement

  • Physicians may not be employed by cannabis growing, processing, or testing facilities, or dispensaries, and may not have any ownership interest in a dispensary. (420, 1219-1222)
  • Physicians who recommend cannabis to a  patient fill out and submit an application online during an office visit with the patient. The information is saved into the electronic verification system, to which state agencies and law enforcement have access. (788-791)
  • Physicians who voluntarily choose to recommend cannabis to patients under the law are shielded from civil and criminal liability, and licensure sanctions. (860-869)
  • A Compassionate Use Board of physicians may hear applications for a one-off compassionate use approval for conditions not listed in the bill; physicians and satisfactory evidence would be required, and the Department of Health would over final say in issuing a card. (930-996)
  • Physicians must be licensed and certified by their appropriate American medical board, in a limited few specialities pertaining to the list of conditions allowed for medical cannabis use. (999-1021)
  • Physicians who voluntarily choose to recommend cannabis must complete training administered by the Department of Health. (1008-1010)
  • Physicians may only recommend cannabis to 20% or less of their patients, unless they receive approval from the Compassionate Use Board upon demonstrating that the physician’s practice has unique characteristics that warrant an increase. (1011-1012, 1023-1027)
  • Physicians may only advertise online that they recommend cannabis; no other advertising is allowed. (1221-1222)

Law Enforcement and Oversight

  • An inventory control system is required, which tracks every single cannabis plant from its infancy, harvest, processing, and sale to the end user.  (227-248)
  • A video recording system is required minoring all cannabis businesses at all times. 45 days worth of video must be stored, it must be tamper proof, and cameras must monitor “all handling and processing of cannabis.” (232-239)
  • An electronic verification system is required that allows patients and physicians to apply, connects to the inventory control system to track who purchased cannabis, where, and when, and will be accessible by law enforcement. (818-856)
  • The Departments of Agriculture and Health may revoke licenses and impose penalties for violation of the law—up to $5,000 per violation. (604-647, 1327-1350)
  • Medical cannabis patients, and industry owners and employees, are not subject to marijuana law penalties provided they are in full compliance with the Medical Cannabis Act. (1547-1639)

Patient Use

  • Smoking cannabis is prohibited. (1632-1637)
  • Applicants who qualify must submit to the Department of Health a signed recommendation by a  physician, pay a fee, and provide personal information. (754-769)
  • A parent or legal guardian may obtain a permit for a minor who qualifies and receives a recommendation from a doctor. (770-787)
  • Frail patients may indicate up to two caregivers who may, upon application and approval, receive a card allowing them to obtain and transport cannabis to the patient. Caregivers must pass a background check and may be excluded for certain felonies. (792-804, 904-928)
  • Medical cannabis cards are valid for the lesser of: an amount of time specified by the physician; or two years. They are renewable provided that physician approval is given. (805-815)
  • Those who obtain a card must carry it with them at all times outside their residence, and cannabis must be in packaging that contains the bar code to allow it to be tracked. Such persons have a rebuttal presumption of legal use if questioned by law enforcement. (873-901)
  • Patients who do not qualify under the included list of conditions may seek approval from the Compassionate Use Board for their condition. (931-996)
  • Qualifying patients must have one of the following conditions: AIDS, Alzheimer’s, ALS, cancer, Crohn’s disease, Epilepsy, MS, PTSD related to military service, or chronic pain. To qualify for chronic pain, the physician must first determine that the individual is at risk of becoming chemically dependent on, or overdosing on, opiate-based pain medication. (1030-1046)
  • Government employees may not be terminated for using medical cannabis. (1050-1068)
  • In a custody dispute or proceedings to terminate parental rights, a court may not discriminate against a parent because of the parent’s possession or consumption of medical cannabis. (1418-1421, 1832-1834)
  • Medical cannabis patients have an affirmative defense against the state’s metabolite law that prohibits driving with any amount of metabolite, whether it is pharmacologically active and impairing or not. (1437-1441)
  • Police officers and Division of Child and Family Services employees may not take a child into custody on the sole basis of the possession or use of medical cannabis in the home, if done in compliance with the Medical Cannabis Act. (1717-1719)


  • Tax revenue from the sale of cannabis is deposited into the Medical Cannabis Restricted Account. This revenue may only be used to fund the state regulation of medical cannabis. (735-750, 1683-1684)
  • Medical cannabis is exempt from sales tax. (1642-1651)
  • A retail purchase of medical cannabis is assessed a 4.7% tax. (1669-1671)

Cannabis Production Establishments (Grows, Processing facilities, Independent Testing Laboratories)

  • Applicants for a license must have $250,000 in liquid assets, submit a detailed application, pay a large application fee, and pass a background check. (256-338)
  • All employees must submit an application, pay a fee, pass a criminal background check. Convicted felons may not be employed by these facilities. (341-356)
  • Employees transporting cannabis must carry their registration card at all times; there is a rebuttable presumption that such individuals are carrying cannabis legally. Cannabis being transported must be labeled, bar coded, and monitored. (390-404, 449-464)
  • A security system is required that can provide notice of unauthorized entry to law enforcement. (408-415)
  • A physician may not be employed by these facilities. (420)
  • Local governments may not enact zoning ordinances that prohibit these facilities on the sole basis that they are cannabis production establishments; they are a permitted use in agricultural, industrial, or manufacturing zones. (423-429)
  • The Department of Agriculture may inspect a facility’s records up to three scheduled times per year, and one unscheduled time per year—or at any time the department has reason to believe a law has been violated. (432-440)
  • These facilities may not advertise to the general public in any way. (443-444)

Growing Cannabis

  • Home grows are prohibited.
  • Cannabis grown may not be visible from the street level outside the facility. (473-475)
  • The Department of Agriculture will establish administrative rules regarding pesticide and fertilizer use to ensure cannabis grown is safe for human use. (486-492)
  • All harvested cannabis is tracked with a unique identifier. (476-479)

Processing Cannabis

  • Products must have a label that contains detailed information about the cannabis, along with bar code and unique ID tracking to tie it to the processed and harvested cannabis from which it originated. (512-520)
  • Cannabis products must be in a tamper resistant package that is not appealing to children and is opaque. (521-526)
  • Cannabis products may not be in a physical form that is appealing to children. (525-526)
  • The Department of Health may create administrative rules regarding the physical criteria for cannabis products. (531-533)
  • No products are allowed that apply cannabis agents to the surface of an existing food product not produced by that facility (e.g. candy, cookies, and other pre-made foods). (534-536)
  • The Department of Agriculture may establish product quality standards for cannabis products to ensure safety for human consumption. (539-546)

Testing Cannabis

  • A person may not obtain a testing facility license, or work for a testing facility, if they have an ownership interest in, or are employed by, a dispensary, processing facility, or cultivation facility. (325-333, 557-558)
  • All cannabis or cannabis products must be tested to determine the cannabinoid profile, and if it contains any mold, fungus, pesticides, other microbial contaminants, or residual solvents. (566-576)
  • Tested cannabis that is found to be unsafe for human consumption must be reported to the Department of Agriculture. The cannabis may be seized, embargoed, or destroyed. (588-600)


  • Applicants must have $500,000 in liquid assets, submit a detailed application, pass a background check, and pay a large fee. (1072-1101)
  • Dispensary licenses are valid for two years, and renewable. (1104-1108)
  • Dispensaries are limited to one per county, except counties of more than 200,000 residents, in which one dispensary for 200,000 residents may be issued. (1135-1138)
  • The Department of Health will evaluate applicants to determine which has best demonstrated experience with a related business, operating a secure inventory control system, complying with a regulatory environment, training and monitoring employees, and which applicant has connections to the local community and can best reduce the cost of cannabis to the patient. (1139-1149)
  • All employees must submit an application, pay a fee, pass a criminal background check. Convicted felons may not be employed by a dispensary. (1152-1188)
  • Employees transporting cannabis must carry their registration card at all times; there is a rebuttable presumption that such individuals are carrying cannabis legally. Cannabis being transported must be labeled, bar coded, and monitored. (1192-1205)
  • Only those with a medical cannabis card may enter. (1210-1211)
  • Dispensaries must have a single, secure public entrance, a security system, and track everything in the inventory control system. (1210-1218)
  • No cannabis may be consumed at the dispensary. (1225-1226)
  • Dispensaries may only sell cannabis, cannabis products, cannabis devices (such as vaporizers), or educational materials related to the medical use of cannabis. (1232-1236)
  • Dispensaries may only sell, in any one 30-day period, 2oz. or less of unprocessed cannabis, or cannabis products that contain 10 grams or less of cannabinoids. All purchases are tracked to ensure dispensary shopping, to exceed this limit, does not occur.  (1239-1255)
  • Devices (vaporizers) that resemble a cigarette are prohibited. (1256-1257)
  • Cannabis products sold must be clearly labeled in tamper resistant containers that are bar coded and tracked. (1264-1272)
  • Dispensaries may not advertise, except for signage on the building that contains the dispensary’s name, hours of operation, a green cross, and a website address. (1275-1283)
  • The Department of Health may inspect a dispensary’s records up to three scheduled times per year, and one unscheduled time per year—or at any time the department has reason to believe a law has been violated. (1286-1293)
  • Local governments may not enact zoning ordinances that prohibit dispensaries on the sole basis that they sell cannabis; they are a permitted use in agricultural, industrial, or commercial zones. (1296-1304)

Fourth Poll Shows Majority Support for Medical Marijuana

December 14, 2015  |  Posted in: Blog  |  One comment

A newly released Dan Jones poll shows sustained public support for legalizing medical marijuana.

According to the poll, 61% of Utahns support legalization—with the strongest numbers coming in from senior citizens.

These numbers are generally consistent with previous polls conducted on the issue over the past year. A poll commissioned by our organization in February, and conducted by Y2 Analytics, indicated that 72% of likely voters felt that doctors should be allowed to recommend cannabis as a treatment option for serious illnesses.

A poll conducted in March by Dan Jones found that 66% of Utahns supported legalization of medical marijuana under a doctor’s supervision. These numbers show an increase in support from a Salt Lake Tribune poll the year prior that indicated 51% support.

That increasing number is ostensibly due to the rising public awareness of the many beneficial uses of the cannabis plant for a variety of conditions, and the willingness of some patients to openly explain their precarious medical situation—and illegal cannabis use.

While a competing CBD-only bill has now been filed, it is unlikely that the same public support exists for a limited option that prohibits THC, threatens sick Utahns with fines and jail time, and denies doctors a beneficial treatment option that their patients need.

Medical Marijuana Laws Don’t Lead to Increased Teen Use

June 16, 2015  |  Posted in: Center for Individual Liberty  |  No comments

A new study published in the Lancet medical journal—the most comprehensive study of its kind to date—looks at adolescent marijuana use in states with legalized medical marijuana from 1991 to 2014. Using annual, repeated cross-sectional surveys of over one million teenagers, the study finds that marijuana use does not increase when states legalize medical marijuana.

The authors of the study write that “the risk of marijuana use in states before passing medical marijuana laws did not differ significantly from the risk after medical marijuana laws were passed.” The study finds that states with higher rates of teenage marijuana use before enacting their medical programs into law were unaffected by the new legal framework.

According to the U.S. Department of Health and Human Services, 40% of adolescents nationwide have tried marijuana at one or more times in their life. In Utah, that number is only 20%. As the new study indicates, based on indicators from over 20 other states, this number is unlikely to rise if Utah’s legislature allows a medical cannabis program.

While a slight uptick in teen use would not have justified denying sick Utahns the medical treatment they need, it is nevertheless a welcome development to have findings indicating that this concern—shared by some Utah legislators—is resolved.

A Conservative Case for Medical Cannabis

March 4, 2015  |  Posted in: Op-Eds  |  One comment

The following op-ed was published this weekend in the Salt Lake Tribune.

In 1915 — 100 years ago — the Utah Legislature passed an omnibus narcotics bill that banned a lengthy list of substances including cocaine, heroin, novocaine, morphine, as well as “loco weed,” the common term in that era for cannabis. At the same time, the law legalized possession, use, or sales of these substances “upon the written order or prescription of a physician.”

Even at the dawn of drug prohibition in the Beehive State, it was recognized that the medicinal value of these substances merited their legal use under a doctor’s supervision. While this recognition changed over time as it relates to cannabis, Utah now has an opportunity to reverse course and once again allow suffering patients to access the significant medical benefits of this plant.

Sen. Mark Madsen is one of the state’s most conservative legislators, and is sponsoring Senate Bill 259 to create a medical cannabis program in Utah. In doing so, he’s appealing to fellow conservatives on the need for compassionate care and the freedom to choose.

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Public Opinion Poll: Do Utahns Support Legalizing Medical Cannabis?

March 2, 2015  |  Posted in:  |  No comments

This poll of 400 likely voters was conducted Feb 26-28, 2015 and carries a +- 4.9 percentage points margin of error. Live callers conducted the interviews over both landline phones and cell phones. It was jointly sponsored by Libertas Institute and Drug Policy Project of Utah, and conducted by Y2 Analytics.

Click here for the topline results and to see further detail.

1. Should doctors who specialize in treating serious illnesses like cancer, epilepsy, and Alzheimer’s be allowed to recommend cannabis, sometimes referred to as marijuana, as a treatment for their patients with serious medical conditions, or not?

Subgroup breakout: results below shown by self-described partisan identification.

Subgroup breakout: results below shown by age group.

Subgroup breakout: results below shown by affiliation with the LDS Church.

2. Tell me whether you agree or disagree with the statement: People with serious illnesses should be punished under Utah state law for using cannabis to treat their condition.

3. Tell me whether you agree or disagree with the statement: Cannabis is more dangerous than drugs like cocaine, heroin, and methamphetamine.

Editor’s note: the federal government’s current classification of drugs ranks cannabis as being more dangerous than cocaine and methamphetamine, and equal in danger to heroin.

4. Tell me whether you agree or disagree with the statement: It should be legal for people with terminal illnesses to use drugs recommended by their doctor but that have not been approved by the FDA.

Editor’s note: this question relates to “Right to Try” legislation receiving near-unanimous support from the Utah legislature.

SB259: Legalizing Medical Cannabis in Utah

February 25, 2015  |  Posted in:  |  One comment

This bill failed in the Senate on a 14-15 vote.

Libertas Institute supports this bill.

In 1915, 100 years ago, the Utah legislature banned a wide range of drugs, including cannabis. At the same time, the law specifically legalized possession, use, or sales of these substances “upon the written order or prescription of a physician.”

With respect to cannabis that medical option was rescinded—but one conservative lawmaker wants to go back to the way things were. Senator Mark Madsen has introduced Senate Bill 259 to legalize medical cannabis in the state, along with an industry that can provide products to patients looking for relief, treatment, or potentially even cures to their medical conditions. An example of two people who can benefit from this new law was published in an exclusive interview by Libertas Institute last week.

This bill would enact a number of provisions relating to the production, use, and sale of cannabis, including the following:

  • Licenses would be issued to medical cannabis growing facilities, production facilities, and dispensaries to legally conduct business in selling cannabis to individuals with permits to purchase it.
  • Individuals who suffer from a qualifying illness, and whose licensed physician provides a signed statement indicating that the individual suffers from the illness and may benefit from treatment with cannabis, will be able to legally obtain and use cannabis.
  • The cannabis can be orally ingested, vaporized, or topically applied; it may not be combusted/smoked.
  • Individuals will be limited in how much cannabis they can purchase within any given time period.
  • No more than one dispensary will be allowed in each county, except for counties with more than 200,000 residents, in which case one dispensary per 200,000 residents will be allowed.
  • Child-resistant packaging and clear labeling will be required of all products sold.
  • Detailed tracking will be required to monitor seed-to-sale so as to minimize abuse or wrongful access.
  • Signage, marketing, and access in any way appealing to or accessible by minors will be prohibited.
  • A security plan will be required for licensed cannabis-related facilities, access will be limited, inspections will be allowed to ensure compliance, and other provisions are included to minimize any other problems.

Cannabis is clearly safer than alternative legal substances—even more so than previously thought. A legislature that is almost unanimously supporting “Right to Try” legislation, which would allow terminal patients to access potentially life-saving medication not yet approved by the FDA, should likewise pass this law—do we really want to wait until people are at death’s door before the government steps back ever so slightly?

This bill is about the freedom to choose—allowing a patient and their doctor to determine if the medicinal properties of cannabis might help alleviate, treat, or cure their condition. Speculative concerns about potential misuse of this product does not justify its outright prohibition. We encourage full support of this important legislation.

More Mothers, and Others, Seeking Expanded Access to Medicinal Cannabis in Utah

February 19, 2015  |  Posted in: Interview  |  7 comments

Editor’s note: Christine and Tenille are two of the new faces of Utahns seeking increased access to medicinal cannabis in Utah, following last year’s law that narrowly opened up access to a limited group of people.

Senator Mark Madsen is working on legislation, not yet made public, to expand access to Utahns with other conditions who can benefit from medicinal cannabis.  The comments in this interview do not necessarily reflect the views of Libertas Institute. 

Christine, left, with Tenille and her infant son

Libertas Institute: Please tell us a little bit about yourself.

Tenille Farr: I grew up in a small farm town in Idaho and am the fifth of nine children. I graduated from BYU, served a mission for the LDS Church, and my husband and I have five sons who I stay at home with.

Christine Stenquist: I’m originally from Miami, Florida, and have lived in Utah for 23 years now. I’m married and have four children.

LI: Both of you have an experience dealing with cannabis that is changing people’s minds. Can you share what happened to you?

Tenille: Until five months ago, I didn’t know what cannabis was. I had heard about marijuana and believed that people smoked it as a drug. But I was diagnosed five months ago with stage 2 Hodgkin Lymphoma cancer in my neck and chest. I was 18 weeks pregnant when I discovered it. I went to the Huntsman Cancer Institute for a series of tests, and because I was pregnant, chemotherapy wasn’t an option for me.

We began to research alternative treatments and put a lot of prayer into our search. We found a friend who had had cancer just like me, when she was pregnant, and she introduced me to a variety of people whose lives had been changed—their ailments big and small healed—because of using cannabis.

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Libertas Institute’s Response to Proposed Industrial Hemp Rules

October 7, 2014  |  Posted in: Center for Free Enterprise  |  One comment

House Bill 105 from this previous legislative session had two important but distinct parts. The widely popularized portion related to legalizing cannabis extract for medicinal use, and earlier this year the Department of Health created administrative rules to implement this program.

The second portion of the bill, which few realize was included, authorized the Department of Agriculture, or any qualifying higher education institution, to “grow or cultivate industrial hemp for the purpose of agricultural or academic research.” Last week, the department issued its proposed rules to administer this program.

Upon review of the proposed rule, Libertas Institute has identified four problematic portions that deal with the department exceeding the authority they were granted under passage of H.B. 105. We have issued a letter, embedded below, to the Department of Agriculture seeking amendments to the proposal prior to its final enactment.

Letter Regarding Proposed Rule for Industrial Hemp Research

HB105: Legalized Cannabis Extract for Medical Use in Utah

February 3, 2014  |  Posted in:  |  6 comments

This bill, as a ninth substitute, passed the House 58-9 and passed the Senate unanimously. Visit our Legislative Index to see the final vote rankings for the 2014 general session.

Libertas Institute supports this bill.

Nearly two dozen states throughout the nation have legalized marijuana to some degree. Public support has changed in recent years, and a majority of Utahns support allowing patients to have access to the cannabis plant for medical use.

A new bill by Representative Gage Froerer, House Bill 105, would allow Utahns to obtain a “hemp extract registration card” after furnishing a letter from their doctor indicating “that the individual may benefit from treatment with hemp extract.” Hemp extract is defined as defined as extract from the cannabis plant that “is composed of less than 0.3% THC by weight, and contains no other psychoactive substance.”

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