Medical marijuana in Utah: an analysis of Senator Mark Madsen’s SB73

The ongoing battle between supporters and detractors of Sen. Madsen’s SB73 “Medical Cannabis Act”, or medical marijuana, seems to be always framed as ‘those who support medical treatment’ versus ‘people who hate sick people’.  While there are the zealots in every campaign, this axis is a mere distraction from the real issue.  The bill, as drafted, is riddled throughout with inaccuracies, mistakes, and unintended consequence to the extent that the bill should not be supported; not because of its subject matter or aim, but rather because of its legislative inadequacies.

A panel of legal and political experts have undertaken the task of examining SB73 not for its intentions, but rather for its legal and policy implications.  (It turned out to be impossible to find a person with the relevant expertise who was affirmatively anti-marijuana within the acquaintances of the group…)  Panelists represented a cross-section of pro-cannabis and cannabis-indifferent preferences, and a large portion of the panelists expressed support of the concept of medical cannabis in general.

(The panelists recommend you read this with the original bill open for context.  It can be found here: http://le.utah.gov/~2016/bills/static/SB0073.html  under the “Other Versions” heading titled “S.B. 73”)

The observations are presented for your consideration:

First, WHAT IS MISSING?
  • There are no standards, or qualifications (nor a mechanism for establishing them) for Independent Testing Laboratory scientific personnel.  This was generally believed to be an oversight, but an oversight of very heavy consequence.
  • There are no testing requirements for Heavy Metals contamination, Foreign Matter, Terpenes, or moisture in medical cannabis products.  These are major contaminants in other states’ cannabis markets.
  • There are no Structure/Function consumer protections in the bill, leaving customers with only ‘buyer beware’ protections against inaccurate labeling and unproven health claims.
Next, SIGNIFICANT POLICY AND LEGAL WEAKNESSES.

In the Medical Cannabis Act, there is a notable absence in the list of regulatory agencies that participate in the market:

211          (18) “Participating entity” means:
212          (a) the Department of Health;
213          (b) the Department of Agriculture and Food;

214          (c) the Department of Public Safety; and
215          (d) the Department of Technology Services.

The Department of Commerce (DoC), with its Division of Occupational & Professional Licensing (DOPL), the agency that oversees medical doctors and pharmacists, is not included in the regulatory framework for medical cannabis.

Which ‘department’?  Who will be certifying and setting standards? (Because we know that it isn’t DoC or DOPL.)

364          (4) A cannabis production establishment agent shall comply with a certification
365     standard designated by the department by rule made in accordance with Title 63G, Chapter 3,

 

367          (5) The department may revoke the cannabis production establishment agent
368     registration card of an individual who:

369          (a) violates the requirements of this chapter; or
370          (b) commits an offense that is a felony under state or federal law.

also:

1186          (3) The department may revoke or refuse to issue an individual’s cannabis dispensary
1187     agent registration card if the individual has committed an offense that is a felony under state or
1188     federal law.

Like, for example:

21 U.S.C. § 841

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally – (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

How is this going to work before the marketplace has begun operating sometime after December, 2016?

279          (3) A person applying for a license to operate a cannabis production facility shall
280     submit to the department, with the person’s application, a proposed operation plan that
281     includes:
282          (a) a description of the physical characteristics of the proposed facility;
283          (b) a description of the credentials and experience of any officer, director, or owner of
284     the proposed cannabis production establishment;
285          (c) the cannabis production facility’s employee training standards;
286          (d) a security plan;
287          (e) for a cannabis cultivation facility:
288          (i) evidence that the cannabis cultivation facility has entered into a preliminary
289     agreement with a licensed cannabis processing facility or a licensed cannabis dispensary in the
290     state for the purchase of the cannabis cultivation facility’s output;

And, wouldn’t this imply the market was being compelled to form cartels from its inception?

This is particularly important and should result in a constitutional note on the bill.

The Compassionate Use Board violates Utah Constitution Article 1, section 24, and also is an impermissible delegation under the doctrine of separation of powers.  Simply, a Board serving an Executive Branch department may not exempt an individual from compliance with duly enacted Legislative Statute of a general nature.

959          (6) The Compassionate Use Board shall:
960          (a) review and recommend to the department approval for an individual who is not
961     otherwise qualified to receive a medical cannabis card to obtain a medical cannabis card for
962     compassionate use if:
963          (i) the individual and the individual’s physician appear before the board and offer, in
964     the board’s discretion, satisfactory evidence that the individual suffers from a condition that:
965          (A) substantially impairs the individual’s quality of life;
966          (B) is intractable; and
967          (C) is not responsive to other treatments; and
968          (ii) the board determines it is in the best interest of the patient to allow the
969     compassionate use of medical cannabis;
970          (b) meet to receive or review compassionate use petitions:
971          (i) quarterly, unless no petitions are pending; or
972          (ii) as often as necessary if there are more petitions than the board can receive or
973     review during the board’s regular schedule;

1011          (4) A physician may recommend cannabis to greater than 20% of the physician’s
1012     patients if the physician:
1013          (a) is certified, by the appropriate American medical board, in one of the following
1014     specialties:
1015          (i) anesthesiology;
1016          (ii) gastroenterology;
1017          (iii) neurology;
1018          (iv) oncology;
1019          (v) pain and palliative care;

1020          (vi) physiatry; or
1021          (vii) psychiatry;
1022          (b) appears before the Compassionate Use Board described in Section 26-58-206; and
1023          (c) demonstrates, to the satisfaction of the board and with the department’s approval,
1024     that:
1025          (i) the physician’s practice has unique characteristics that warrant allowing the
1026     physician to recommend cannabis to greater than 20% of the physician’s patients; and
1027          (ii) the physician has established expertise in medical cannabis.

and

1044          (2) In addition to the conditions described in Subsection (1), a condition approved
1045     under Section 26-58-206, in an individual, on a case-by-case basis, is considered a qualifying
1046     illness for the purposes of this chapter.

Another constitutional note issue:  Prior restraint of permissible content (symbols) is a violation of the 1st Amendment and Utah Article 1, section 15.

1277          (2) A cannabis dispensary may only advertise using:
1278          (a) signage on the outside of the cannabis dispensary that includes only:
1279          (i) the cannabis dispensary’s name and hours of operation; and
1280          (ii) a green cross;

This creates several problems.  Will the UHP discharge a trooper assigned to the NSA facility in Draper because he has a cannabis card, and cannot follow an order to stand that post? Or will the NSA arrest him because he is a restricted person on Federal property?  Being issued a cannabis card is prima facie evidence that the cardholder is a user of illegal drugs under federal law; therefore, nobody with a cannabis card can legally purchase or own a firearm under Federal law.  The Cole Memorandum identifies “Preventing violence and the use of firearms in the cultivation and distribution of marijuana” as a priority that will invite Federal enforcement activity in a State that has legalized marijuana.  No cannabis business employee may exercise their State and Federal Constitutional rights without risking Federal prosecution.

1061          (2) A public employer may not do the following to an individual because the individual
1062     uses cannabis, a cannabis product, or a medical cannabis device in accordance with this
1063     chapter:
1064          (a) refuse to hire or promote the individual;
1065          (b) discharge, demote, or terminate the individual;
1066          (c) retaliate against or harass the individual; or
1067          (d) discriminate against the individual in matters of compensation or in terms,
1068     privileges, and conditions of employment.

Unless the person was in a car, wouldn’t the system be required under the law to deny the attempt (Line 893)?

Compare:

818          (1) In accordance with Section 63F-1-104.5, the participating entities shall establish
819     and maintain a secure electronic verification system that:

840          (g) is accessible by state or local law enforcement:
841          (i) during a traffic stop for the purpose of determining if the individual subject to the
842     traffic stop is complying with state medical cannabis law; or
843          (ii) after obtaining a warrant;

With:

889          (b) (i) If a law enforcement officer stops an individual who possesses cannabis, a
890     cannabis product, or a medical cannabis device, and the individual represents to the law
891     enforcement officer that the individual holds a valid medical cannabis card, but the individual
892     does not have the medical cannabis card in the individual’s possession at the time of the stop by
893     the law enforcement officer, the law enforcement officer shall attempt to access the electronic
894     verification system to determine whether the individual holds a valid medical cannabis card.

 

This raises two separate issues:

  1. Restaurants, industrial facilities, financial institutions, and most other regulated and highly-regulated businesses are subject to random inspection at any time, at the discretion of the regulator. Why do Medical Cannabis businesses get kid glove treatment in general?
  2. The Dept. of Justice’s ‘Cole Memorandum’, that lays out requirements to keep the Federal Government from intervening in State cannabis programs, require that the State systems “prevent” illegal behavior. Authorizing random, unannounced inspections only where the Department (whichever it actually is,) believes that the establishment already “has violated” means that, logically, SB73 fails to meet the conditions imposed to protect the State actors from Federal arrest and prosecution.

435          (2) The department may inspect the records and facility of a cannabis production
436     establishment:
437          (a) as many as three scheduled times per year;
438          (b) as many as one unscheduled time per year; and
439          (c) if the department has reason to believe that the cannabis production establishment
440     has violated the law, at any time, scheduled or unscheduled.

This pretty clearly requires every single product to be tested prior to sale.  EVERY. SINGLE. LOZENGE, BROWNIE, BUD, AND VIAL!  (Think about the logistics consequences…)

565          4-42-502. Cannabis and cannabis product testing.
566          (1) An independent cannabis testing laboratory shall, before cannabis or a cannabis
567     product is offered for sale at a cannabis dispensary, test the cannabis or cannabis product as
568     described in this section.
569          (2) An independent testing laboratory shall determine the cannabinoid profile of
570     cannabis or a cannabis product.

The taxpayers are going to be developing a lot of software and programs by the time this system is running:

218          4-42-103. Duties — Coordination with participating entities.
219          (1) The department shall administer and enforce the licensing of a cannabis production
220     establishment in accordance with this chapter.
221          (2) The department shall coordinate with the participating entities to:
222          (a) enforce state law related to medical cannabis; and
223          (b) develop, or participate in the development of, an electronic verification system and
224     an inventory control system.

850          (b) may direct the Department of Technology Services to work with a third party
851     provider to develop and maintain the electronic verification system;

1008          (3) A physician shall complete, before recommending cannabis to a patient, a training
1009     program in cannabis recommendation best practices that is approved by the department, by rule
1010     made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act.

 

This raises a question of the degree of public safety provided by SB73 and SB89

S.B.73

232          (3) An inventory control system installed in a medical cannabis establishment shall
233     include a video recording system that:

239          (d) is capable of storing a video record for 45 days.

S.B.89

195          (4) An inventory control system shall include a video recording system that:

199          (c) is capable of storing a video record for 180 days.

Which one???

240          (4) An inventory control system installed in a medical cannabis establishment shall
241     maintain compatibility with:
242          (a) the electronic verification system described in Section26-58-202; and
243          (b) an inventory control system installed in another medical cannabis establishment.

Doors, Alarms, Cameras, Procedures… oh, and NO DOCTORS!!

406          4-42-205. Operating requirements — General — Physician may not be a cannabis
407     production establishment agent.
408          (1) A cannabis production establishment shall have:
409          (a) a single, secure public entrance;
410          (b) a security system with a backup power source that:
411          (i) detects and records entry into the cannabis production establishment when the
412     cannabis production establishment is closed; and
413          (ii) provides notice of an unauthorized entry to law enforcement; and
414          (c) a lock on any area where the cannabis production establishment stores cannabis or a
415     cannabis product.
416          (2) (a) A cannabis production establishment shall follow the operation plan submitted
417     to the department at the time of licensing under Section 4-42-201.
418          (b) A cannabis production establishment shall notify the department within 30 days of
419     any change in the cannabis production establishment’s operation plan.
420          (3) A physician may not serve as a cannabis production establishment agent.

Even if the establishment is otherwise non-conforming for such zones?  (Water? Power? Sewer? Fire Code? Environmental?)

427          (2) A municipality or local government shall allow a cannabis production
428     establishment to operate as a permitted use in an agricultural, industrial, or manufacturing
429     zone, or a comparable zone.

Does this make us confident in the accuracy/completeness of the labeling requirements on Medical Cannabis packaging?  +/- 15%?!  Also, while the department must make rules that conform to FDA rules for human consumption, there are no FDA regulations regarding cannabis for human consumption, since research into it is illegal in the U.S., as is human consumption as a Federal Schedule 1 substance. So, any labeling rules that actually apply to cannabis products are only ‘optional’ for the department.  No systemic and random label audit. Self-enforced.

537          (3) A cannabis product may vary in the cannabis product’s labeled cannabis profile by
538     up to 15% of the indicated amount of a given cannabinoid, by weight.
539          (4) (a) Subject to Subsection (4)(b), the department shall establish, by rule made in
540     accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, additional
541     product quality standards for a cannabis product that are consistent with rules for products for
542     human consumption issued by the United States Food and Drug Administration.
543          (b) The department may establish a rule under Subsection (4)(a) that is not consistent
544     with rules issued by the United States Food and Drug Administration to the extent necessary to
545     adapt the United States Food and Drug Administration rules to the specific characteristics of
546     cannabis or a cannabis product.

Q: When, exactly, must this system be in place?

A: Not more than 15 days after an application is submitted through the system that doesn’t exist.

753          26-58-201. Medical cannabis card — Application — Fees — Database.
754          (1) The Department of Health shall, no earlier than December 1, 2016, and within 15
755     days after an individual submits an application in compliance with this section, issue a medical
756     cannabis card, via the electronic verification system described in Section 26-58-202, to an
757     individual

817          26-58-202. Electronic verification system — Department of Technology Services.
818          (1) In accordance with Section 63F-1-104.5, the participating entities shall establish
819     and maintain a secure electronic verification system that:
820          (a) allows an individual, under Subsection 26-58-201(1), or an individual who is the
821     parent or legal guardian of a minor under Subsection 26-58-201(2), to:
822          (i) apply, in the presence of a physician, to the Department of Health for a medical
823     cannabis card; and
824          (ii) designate up to two caregivers for the patient;

Is a small, downtown dispensary more financially risky than a 50,000 plant growing operation?  Compare:

1071          26-58-301. Cannabis dispensary — License — Eligibility.
1072          (1) A person may not operate as a cannabis dispensary without a license from the
1073     department issued under this part.
1074          (2) Subject to the requirements of this part, the department shall, within 30 business
1075     days after receiving a complete application, issue a license to operate a cannabis dispensary to a
1076     person who submits to the department:

1079          (b) evidence that the person:
1080          (i) possesses or controls a minimum of $500,000 in liquid assets for each application
1081     submitted to the department;

With

255          4-42-201. Cannabis production establishment — License — Renewal.
256          (1) A person may not operate a cannabis production establishment without a license
257     issued by the department under this chapter.
258          (2) Subject to Subsections (6) and (7), the department shall, within 30 days after
259     receiving a complete application, issue a license to operate a cannabis production establishment
260     to a person who submits to the department:

263          (b) evidence that the person possesses or controls a minimum of $250,000 in liquid
264     assets for each type of license for which the person applies;

Is this random and arbitrary?  Supported by any science?  Physicians treat individual patients, not demographics.

1004          (2) A physician may recommend cannabis if the physician:
1005          (a) completes the training requirements described in Subsection (3); and
1006          (b) except as described in Subsection (4), recommends cannabis to no more than 20%
1007     of the physician’s patients at any given time.

Is “military service” a medical condition?  Does PTSD from military service differ, medically, from other PTSD?

1041          (h) post-traumatic stress disorder related to military service;

This privileges medical cannabis above all other substances susceptible to abuse, including alcohol, and other prescription medications.

1418          (6) In considering the past conduct and demonstrated moral standards of each of the
1419     parties as described under Subsection (1)(a)(i), a court may not discriminate against a parent
1420     because of the parent’s possession or consumption of cannabis, a cannabis product, or a
1421     medical cannabis device, in accordance with Title 26, Chapter 58, Medical Cannabis Act.

(UPDATE: After the panel’s analysis, Sen. Madsen introduced a significant substitute Bill that does address some of the weaknesses observed by them.  You can find the substitute titled “Introduced” as well as a comparison of the two versions titled “Related Documents” here: http://le.utah.gov/~2016/bills/static/SB0073.html on the right-hand side of the page)


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