SALT LAKE CITY, Utah (Dec. 6, 2018) – On Monday, Gov. Gary Herbert signed a bill into law to implement a medical marijuana program in Utah, and ban the use of resources for some federal prohibition and gun control enforcement related to the plant.
Rep. Gregory Hughes (R) introduced House Bill 3001 (HB3001) on Nov. 11. Sen. Evan Vickers (R) sponsored the bill in the Senate. The new law creates a medical marijuana program for Utah, replacing the ballot measure approved by voters on Nov. 6. Patients with qualifying conditions will now be able to access medical marijuana with the recommendation of a physician. The law also establishes a licensing and regulatory scheme for cultivation facilities, processing facilities, testing facilities and dispensaries.
On Dec. 3, the House approved HB3001 by a 60-13 vote. The Senate approved the measure 22-4 the same day. Gov. Gary Hubert signed the bill Monday night, saying he planned to implement the law as quickly as possible.
BANNING ENFORCEMENT OF FEDERAL LAWS
Utah is now the first state with legal medical marijuana to expressly prohibit state and local police from enforcing some federal marijuana laws.
Under the new law, state officials in Utah cannot expend any state or local resources, including an officers time, making arrests or seizing marijuana “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] the activity is in compliance with the state medical cannabis laws.”
This not only blocks local officials from participating in federal-only cannabis prohibition, the law should also prevent them from sharing personal information with the federal government about medicinal cannabis businesses or consumers who are in compliance with state law.
HB3001 also added a provision to help protect Utah gun owners who use medicinal cannabis. It prohibits expending any state or local resources, including an officers time, to “enforce a law that restricts an individual’s right to acquire, own, or possess a firearm based solely on the individual’s possession or use of cannabis in accordance with state medical cannabis laws.”
This includes enforcement of federal firearms laws.
As Suzanne Sherman noted in a recent article, the federal government has long claimed the power to restrict the right to keep and bear arms of medical marijuana patients:
If you purchase a firearm from an FFL, you will be presented with the Firearms Transaction Record form 4473, which you must, under penalty of perjury, answer fully and truthfully. You may see it for yourself HERE.
Question 11(c) asks prospective gun purchasers if they are unlawfully using any controlled substances. You think, “Hey, I can answer ‘no,’ as marijuana is now legal in my state. Immediately following the inquiry is the following admonition (in bold letters):
“Warning: The use or possession of marijuana remains unlawful under Federal law, regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”
Not surprisingly, in 2016, the U.S. Ninth Circuit Court of appeals ruled that this restriction does not violate the Second Amendment.
“This is huge in my opinion,” Tenth Amendment Center founder and executive director Michael Boldin said. “The federal government depends on its state and local partners to enforce marijuana prohibition, and their attacks on the right to keep and bear arms of medical marijuana patients. But partnerships don’t work very well when one of the partners quits.”
“Although this bill is a step backwards in access for patients, it’s a big step forward in raising the bar to help protect the right to keep and bear arms of medical marijuana patients,” Boldin continued. “More states should follow this example.”
NEGOTIATIONS AND BALLOT MEASURE
HB3001 was the result of negotiations between Utah legislators, and Prop 2 supporters and opponents that started even before the ballot measure passed. Utah law allows the legislature to amend, or even repeal, a ballot initiative. There were fears that without a compromise, the legislature would kill the entire medical marijuana program.
The law makes some significant changes to Prop 2. It reduces the number of private dispensaries from 40 to seven and also lowes the number of cultivation licenses available. Most of the program will now be state-run. The bill also largely prohibits edible marijuana and reduced the number of qualifying conditions.
In a statement, Marijuana Policy Project (MMP) deputy director Matthew Schweich said that while the legislation watered down the ballot measure, it was a huge step forward.
“This bill is undoubtedly inferior to the law enacted by voters in November. However, Proposition 2 would very likely have been defeated without the compromise deal, which prevented an onslaught of opposition spending. Advocates made the responsible decision to negotiate with opponents and ensure that patients were not left without any access to medical cannabis.”
Libertas Institute founder and president Connor Boyack worked tirelessly to get medical marijuana legalized in Utah. He called the passage of HB3001 a “workable solution,”
“For years, we have been seeking a balance between political concessions and pushing the needle as far in favor of medical freedom as we could. This negotiated result is a decent balance to get the program underway. With this result, a major gutting of Prop 2 has been prevented, unlike what we have seen in the past and may see in the future on other issues.”
The battle may not be over. The advocacy group Together For Responsible Use and Cannabis Education (TRUCE) filed suit in state court hoping to get the legislation overturned. The organization wants full implementation of the ballot measure as passed.
Despite the vote and legislative wrangling, the federal government deems everything happening in Utah related to medical marijuana illegal.
LEGALITY
Under the Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
During the 2018 legislative session, the Utah legislature took the first step, passing a law allowing. terminally ill patients to legally use medical marijuana under the state’s Right to Try law. Legalization of medical marijuana through Prop. 2 removes another layer of laws prohibiting the possession and use of marijuana, but federal prohibition will remain on the books.
FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By curtailing state prohibition, Utah sweeps away a small basis the basis for 99 percent of marijuana arrests. The provisions expressly prohibiting participating in federal enforcement will further limit the federal government’s ability to maintain prohibition in Utah.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly annual budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution either. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
A GROWING MOVEMENT
Utah joins a growing number of states simply ignoring federal prohibition, and nullifying it in practice.
Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In January, Vermont became the first state to legalize marijuana through a legislative act.
With 33 states including Utah allowing cannabis for medical use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Boldin said.
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