The opposition to Proposition 2 — the Utah Medical Cannabis Act — has become defined by desperation and a willingness to completely misrepresent what voters will actually be considering come November.
There have been outright lies to persuade signers to remove their names from the petition. There have been two lawsuits with unfounded claims, most recently that Mormonism somehow considers medical cannabis users to be “repugnant.” There was a very poorly written “legal analysis” which we debunked here. And more recently, Gayle Ruzicka, head of the Utah Eagle Forum, told the public on TV this past weekend that there would effectively be a free-for-all after Prop 2’s passage in which “by just saying” that a person is a qualifying medical patient, “they cannot be arrested or charged with using marijuana if they say that. So that means anybody… can use marijuana.”
This is 100% false.
Gayle Ruzicka and the Utah Eagle Forum have put out a document called “15 Reasons Why Proposition 2, “Utah Medical Cannabis Act is More Recreational Than Medical.” As we did with the Kirton McConkie memo, we’ll be addressing and rebutting each of these items to disprove the claim that Prop 2 is as broad and worrisome as its opponents claim.
“If the initiative passes in November individuals will be able to use, possess and manufacture marijuana legally for 19 months.”
This is the point raised above. The Eagle Forum document (hereafter referred to as “memo”) says that “They can do this by just saying they are sure that they will qualify for a medical cannabis card when they are available July 1, 2020.”
As indicated, this is false.
Opponents completely misunderstand what Prop 2 actually says. Here is the provision in question:
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.
In plain English, what this means is that a patient can defend their possession of medical cannabis in court in order to get out of a possession charge. It does not mean that officers cannot arrest that person, or that prosecutors cannot charge them—not at all. And it doesn’t even guarantee the patient will be successful in persuading the judge that they would qualify for a card and thus be legal. The difficult burden of proof will be on the defendant (the medical patient) to make a case as to why they would qualify for a card, that the medical condition is indeed on the approved condition list, and that the condition was pre-existing prior to arrest.
Why is this provision in place? It’s rather simple. Once voters have said “yes” to Prop 2, it’s unreasonable to continue criminalizing patients for two, three, or even four or more years while the bureaucracy is getting the program up and running and ready for patients to receive cards and purchase from a legal dispensary. It is, frankly, immoral to continue doing so, especially considering that voters will have just indicated that these patients should not be treated as criminals. Therefore, this provision was put in place to ensure patients have an option to escape the heavy handed criminal justice system in the interim.
So, contrary to what Gayle Ruzicka and the Utah Eagle Forum and other opponents are claiming, this does not at all make it legal “to use, possess and manufacture marijuana legally,” nor is it comparable to a recreational cannabis program.
“The marijuana CANNOT be prescribed by a doctor.”
Physicians are unable to prescribe a Schedule I substance—an herb the federal government (absurdly) claims possess no medical benefit. As such, despite thirty states being willing to stop criminalizing patients in their communities, doctors must instead “recommend” cannabis to their patients, much as they would recommend acupuncture, a massage, or exercise. It is illegal for them to write a prescription for medical cannabis use, even in states that have legalized its use for patients.
To contend that a patient’s use of cannabis is “more recreational than medical” because of a physician’s inability to write a prescription is to claim that nothing medical existed before the modern prescription system—or that there’s no medicinal value in a doctor suggesting that a patient take a few supplements daily.
That contention is, of course, without merit.
“The marijuana is NOT sold in a pharmacy.”
As with the previous argument, the federal government’s longstanding interference in this arena is what requires states to set up an alternative distribution system since pharmacies are federally regulated and cannabis remains (wrongly) illegal per federal law. Of the 30 states that have medical cannabis programs, not a single state has distribution through pharmacies because it is federally impossible to do so.
The memo argues: “It is sold in a marijuana dispensary that sells a variety of marijuana products, whole plant, THC, candy, cookies, oils, syrups, etc.”
Note the continued use of the pejorative and scary “marijuana.” All the same, yes, legal dispensaries are allowed under Prop 2—likely around a dozen, whose owners have to pass substantial hurdles in order to set up operations. These dispensaries cannot advertise publicly, may only admit legal cardholders, have to have substantial security and video monitoring, and must allow regulators on site for an inspection at any time.
They will be allowed to sell cannabis products, which are regulated, inspected, controlled, and tracked. Some patients will prefer the “whole plant” (a misnomer since it’s just the flower bud being discussed), for example, to juice the product and avoid the potential psychoactivity that only comes when it is heated. Others will prefer a lozenge or a topical cream or patch. These patients will be presumably offered many options from which to choose.
“The marijuana is NOT dosed.”
“There is no limit on THC potency of any products available to people of any age,” reads the memo, as if the assumption here is that patients want to get “high” and obtain highly potent THC.
Instead, patients want to find equilibrium that abates their symptoms or reduces their pain while allowing them to function and get on with their day. And when using the many pharmaceuticals (whose potency and frequency of use opponents seem to be fine with), patients find they are far more impaired and “high” than with a cannabis alternative.
It is true that there are some strains of cannabis available that have THC. It is also true that there are many that have hardly any THC, and only provide a limited entourage effective to amplify the CBD for seizure reduction, muscle relaxation, and more.
Because the cannabinoid profile of each strain varies, and because each person’s physiology appears to often respond differently, patients and their doctors are instead free to find what works for them, as is the case with pharmaceuticals whose initial doses often do not work and must be adjusted—or swapped for another medication.
Once a patient’s legitimate need has been established, it seems odd to want to continue criminalizing them—as is the Eagle Forum’s apparent argument—merely because they wish to try and use a non-dosed cannabis lotion.
“There is NOT a pharmacist involved.”
Pharmacists are unable to dispense cannabis for the same reasons stated above. It appears that Gayle Ruzicka and the Utah Eagle Forum believe cannabis should remain illegal under state law unless and until the federal government ever gets around to changing federal law, which they may not. As an advocate for so-called “state’s rights” and limited government, Libertas Institute strongly disagrees with this deference.
The memo claims that “People who shop at the dispensary are advised by a non-medically qualified employee, called a budtender.” Does Eagle Forum suggest that dispensaries be required to employ moonlighting pharmacists, most of whom are unfamiliar with cannabis given its decades-long prohibition? This would only force costs to substantially increase for patients to access their medicine, while not providing much benefit.
Whether a so-called “budtender” has a medical degree or not, a physician has already established a legitimate medical need for the patient and has expressed that the person may be benefited from using cannabis. Rather than leaving a patient alone to try and learn the many varieties and potencies and applications of cannabis, it’s clearly preferable to have the guidance of somebody familiar with this specific product, which pharmacists are not. And it’s far better than letting the patient simply seek whatever they can find on the street, which won’t be tested, inspected, and tracked.
“There is NOT a requirement for warnings about side effects or danger associated with the marijuana products.”
“Real medicine is required by law to include warnings of all side effects,” the memo states.
Because of cannabis being on Schedule 1, federal rules applicable to labeling pharmaceuticals do not apply to medical cannabis. Such warnings are typically for liability purposes, but continued federal prohibition makes this issue uncertain for many manufacturers statewide.
Years of work in this arena have also indicated that the opposition’s claims about side effects and danger are hyper-exaggerated and politically motivated. Should there be a neutral, fair, and scientifically accurate and reasonable set of statements to pass along to the medical patient, we wouldn’t oppose them being made aware of these things—which are likely already known, given the decades-long propaganda campaign against “marijuana” as an illicit drug.
“NO ONE, including doctors, is held responsible for patient’s harm.”
The memo reads, “The initiative states that a physician who recommends cannabis to an individual may not be subject to civil or criminal liability or licensure sanctions.”
Again, misleading. The provision actually states that a physician who recommends treatment with cannabis cannot based on the recommendation be subject to liability or sanctions. This is a free speech protection for physicians who do wish to recommend a federally illegal substance to their patients, shielding them from professional and legal repercussions for doing so.
Physicians can still be held accountable on a number of other bases, including medical malpractice, should you be able to prove that that the doctor breached his or her duty of care to the patient.
Future developments in cannabis research will no doubt aid physicians in being able to better target form, type, and dosage to regulate their patients’ use in greater detail than current science (that’s been roadblocked for years) affords. At that time, the laws can be updated if desired to enable more oversight (and thus physician liability).
“The products in the marijuana dispensary are NOT required to be scientifically researched.”
The Utah Eagle Forum memo reads, “Even if there are scientific studies that cause concern about safety, the initiative says, ‘Guidelines…may not limit the availability of cannabis (or) cannabis products.’” This is a misrepresentation of what is actually in Prop 2.
Existing law in Utah has created the “Cannabinoid Product Board”—a group of physicians to give their input on issues related to cannabis. These doctors are not elected. They possess no political authority. They have recommending power only.
As such, it is wholly irresponsible to invest them with authority to override the public’s vote and a patient’s medical preferences. They can, however, report annually to the Health and Human Services Interim committee—a group of legislators tasked with reviewing input from regulators and considering potential legislation for the future.
And based on any scientific developments, those legislators have the ability to try and amend Prop 2 to expand or narrow the range of options patients are legally allowed. Appointed doctors without political accountability should not be able to do so, which is what Prop 2 makes sure of.
‘The state of Utah, NOT a doctor, dictates who can buy marijuana.”
This is rather obvious, because cannabis is currently treated as a criminal justice issue rather than a health one. As such, physicians who give their recommendation to a patient are actually extending to that patient a protection from the criminal justice system—the right to no longer be treated as a criminal for medical cannabis use.
In essence, then, the point is completely wrong—it is in fact the doctor who dictates who can legally possess and purchase cannabis. The state merely obeys whatever the licensed physician decides, if and when he or she states that their medical opinion is that the patient will benefit from its use.
“Parents can buy marijuana for their children at any age.”
This is rather like saying that a parent can buy alcohol, or a gun, or matches, or a cell phone for their children at any age. What matters is the tool and how it’s used—not that the tool exists at all.
Caregivers of these sick and suffering children are mentioned in Prop 2 in 24 places. Giving caregivers the ability to help care for and administer medicine to their sick children is an obviously necessary aspect of the proposal, as underage or incapacitated individuals cannot procure their own medicine.
And what a blessing it is to be able to obtain cannabis oil for a young child’s seizures, in a mixture of cannabinoids (CBD, THC, etc) that provide the “entourage effect” that reduces seizures far beyond just CBD only. Parents should not be restricted in the medical options they can provide for a desperately ill child.
“The initiative requires the dispensaries to destroy ALL records 60 days after the sale of the marijuana.”
“In contrast,” states the memo, “pharmacies must keep records for 10 years.”
First of all, this is misleading because it states (in bold, capital letters), ALL records. But that’s not true. Here’s what Prop 2 actually says:
The electronic verification system described in Subsection (1) shall … connect with an inventory control system used by a cannabis dispensary to track, in real time, and to archive for no more than 60 days, 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, and any cannabis production establishment and cannabis dispensary associated with the cannabis or cannabis product;
In other words, we’re talking strictly about purchase records only — not records of employee access, inspections, security, banking, and so on.
So why purge purchase records? Pharmacies are not selling federally illegal products—but dispensaries are. Because it is unwise to give the federal government any historical record of legal violations, and because the state has no need for ongoing records of patient medicinal purchases, it is wise to purge them on a rolling basis to protect vulnerable patients from any future federal legal issues that may arise, though unlikely.
“Some products sold in the dispensaries may be smoked.”
Prop 2’s language is clear: “It is not lawful for a medical cannabis card holder to smoke cannabis or to use a device to facilitate the smoking of cannabis.”
This cannot be reiterated enough; smoking of cannabis under the Utah Medical Cannabis Act is strictly prohibited. It is not lawful. Yet the Utah Eagle Forum and other opponents have long objected to what they scarily call “whole plant,” or in other words, the flower from which cannabinoids and other extracts can be developed into a oil or other substance for integration into a variety of products. But many prefer the flower itself, because if consumed raw, as is the case with juicing, the benefits can often be obtained without any psychoactive effects at all.
Additionally, the plant material can be warmed with a vape pen heating element in order to emit vapor without combusting the organic material, eliminating carcinogens and other problems associated with smoking. The memo wrongly claims that in this scenario it is “lit with a battery lighter,” which no flame actually exists.
Prop 2 defines combustion as a temperature of 750 degrees Fahrenheit or more. This number was provided by staff during drafting on Senator Madsen’s bill years ago, and if needed can be amended to ensure the explicit statement in the initiative is realized: smoking is prohibited, while vaping is allowed.
“If marijuana card holders live more than 100 miles from a dispensary they may grow up to six marijuana plants at a time.”
This is only true if context is provided, which the memo is sorely lacking. Here is the actual provision:
An individual who has been issued a medical cannabis card under this section may … after January 1, 2021, if a licensed cannabis dispensary is not operating within 100 miles of the medical cannabis card holder’s primary residence, grow up to six cannabis plants for personal medical use within an enclosed and locked space and not within view from a public place and that is not within 600 feet of a community location or within 300 feet of an area zoned exclusively for residential use, as measured from the nearest entrance to the space and following the shortest route or ordinary pedestrian travel to the property boundary of the community location or residential area.
In other words, this provision doesn’t kick in for over two years, and only if no dispensary is in operation within 100 miles of one’s residence. Once dispensary licenses are issued, the entire residential area of the state will be covered within this limit. According to the ballot initiative, every county in the state can have at least one dispensary and up to 1 per 150,000 residents. The likelihood that an individual will ever find themselves outside of this 100 mile radius in almost impossible to imagine. Unless, that is, the government refuses to license dispensaries in violation of the law.
And that’s why the provision was included in the ballot initiative. Across the country there have been state bureaucracies that dragged their feet on implementation. This provision was included in order to induce the state to urgently get things going so patients can get the medicine that voters had previously said yes to.
Even if this language did become actualized, the cannabis cannot be grown in a residential area, and must be cultivated in an enclosed and locked space, where nobody from the public will even have a clue it’s there. It’s hardly the scary provision that the memo makes it out to be.
“The initiative does NOT require that the patient be under a doctor’s care while using marijuana.”
Here’s what Prop 2 actually says:
An individual who is eligible for a medical cannabis card under Subsection (2) shall submit an application for a medical cannabis card to the department via an electronic application connected to the electronic verification system, with the recommending physician while in the recommending physician’s office, and that includes the individual’s name, gender, age, and address.
And also:
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.
In other words, the memo’s contention that it is “not possible” for a medical cannabis patient to be “under a doctor’s supervision” is flat out wrong.
“If the initiative were to pass it could repeal all of Utah’s medical marijuana laws.”
“Could?”
Prop 2 was written before the 2018 legislative session. It does repeal the CBD-for-seizures law that Rep. Froerer passed a few years ago, as it becomes unnecessary to apply for such a limiting program when voters have authorized a more expanded version.
But the memo is concerned about more than that: “Parents of children, who suffer with seizures, can currently get CBD, the cannabis product that has been known to help their children, at their local drug or health food store. That will end if Prop 2 passes.”
This is false.
First of all, what’s sold in retail stores is hemp-derived CBD, not the concentrated version that controls seizures in some cases.
Second, no store is legally selling CBD products right now. Yes, the legislature passed a law earlier this year authorizing retail sale of hemp-derived CBD products—but only if the products have been inspected by and registered with the state.
No such product has gone through that process, so everything that continues to be sold and purchased in these stores is in violation of the law. Regulators know this. Evidently the Utah Eagle Forum does not.
But Prop 2 won’t touch this law anyway; it was passed in the 2018 legislative session, after Prop 2 was drafted. It amended a different version of the Utah code. It will remain untouched by Prop 2, despite the memo’s assertion that “All of the good things that are already legal to help people could be gone just because the initiative passed.”
Again, “could?”
Nothing passed in the 2018 session is even operational. And Rep. Froerer’s bill helps barely 100 families, many of whom are still violating the law by ultimately obtaining a cannabis oil that also contains THC, in order to find the variety that actually reduces seizures.
So it’s much ado about nothing, and an unsurprising continuation of fear and misrepresentations seeking to undermine one of the most restrictive, conservatively regulated medical cannabis programs in the country.
Conclusion
We understand that a minority of Utahns continue to oppose the legalization of medical cannabis, and will continue to do so, regardless of the facts presented. However, it’s imperative that when false information, half truths, and misleading propaganda and outright fabrications are used to sway otherwise sympathetic citizens, objective information must be presented to combat such nonsense. We are saddened by the apparent indifference of many opponents toward patients and their willingness to continue subjecting them to the strong penalties in the criminal justice system.
We are, however, heartened that the majority of our peers recognize the plight and are willing to see the law changed. We recognize that doing so is scary to some opponents who prefer to see things change only very slowly, and very incrementally.
But many patients do not have that luxury, and they continue to suffer substantially—waiting years for the process to unfold and the law to change.
Voters can and should ultimately decide for themselves, but it is a profound disservice to completely misrepresent what they are considering—in this case, Prop 2.
Let’s have a respectful and informed debate, free of fear and misrepresentations. Patients deserve at least that much.