Prop 2 Got Through?

It’s true!  By 53% to 46%, voters during yesterday’s elections approved Proposition 2, a significant moment for individuals who favor relaxing Utah’s marijuana laws.  As one of the conservative capitals of the U.S., this move has caught the attention of the entire nation, and might well mark a turning point for anyone who favors the legalization of cannabis use, medicinally or otherwise.  Whether or not this development is a cause for celebration or concern remains to be seen, but regardless, it is important to understand exactly what Proposition 2 is.


As the situation stands now (that is, beginning January 1st, 2019), marijuana will be strictly regulated by the state; that is, it will only be grown inside Utah, will only be processed at a state facility and will only be sold by the state.  This isn’t all that surprising – most Utahn’s are familiar with Utah’s liquor laws – but what is a bit more disturbing is that, by law, the state will only sell to research institutions and people who suffer from a terminal illness and a life expectancy of less than six months.


Now, while Proposition 2 has been heralded as everything from a humanitarian gesture to an open door for recreational drug use, it is important to understand that Proposition 2 does not constitute an entirely new law.  It is an addition to the proposed law set to go into effect in 2019, and so it is important to note what the proposition adds.

  1. PRIVATE FACILITIESProbably the most significant addition made by Proposition 2 is the legalization of private marijuana growers, processors, testing facilities and sellers, putting an end to the state monopoly as originally imagined by the legislature. Of course, although the state won’t have this monopoly on the production of marijuana, there are still several limitations on these producers, like:
  • Private processors must be licensed by the state;
  • Advertising, packaging, labeling, etc., are all strictly regulated;
  • The types and quantities of products sold are limited;
  • All private processors must track their inventory in real-time through a state-approved electronic system;
  • The number of licensed private processors is limited;
  • Facilities must be accessible to state inspectors at any time.

It seems reasonable to conclude that these restrictions would be expected in any state-owned operation, leaving little doubt that privatization is likely the prickliest issue when it comes to Proposition 2.

  1. MEDICAL USEMany – if not most – people agree that human beings should not be subject to undue suffering in any form, and this has long been the cry of cannabis supporters. Marijuana’s pain-relieving qualities have been regularly praised and documented, yet federal and state laws have, until now, seemed oblivious to this position.  This is made all the more obvious by the original law to be enacted in 2019, requiring that medical use of marijuana was to be reserved for individuals suffering from terminal illness which left them with a life expectancy of six months.

    Proposition 2 does away with this strict requirement; specifically, it lists a number of illness which qualifies an individual for treatment by marijuana.  They are:

  • HIV, acquired immune deficiency syndrome or an autoimmune disorder;
  • Alzheimer’s disease;
  • amyotrophic lateral sclerosis;
  • cancer, cachexia, or a condition manifested by physical wasting, nausea, or malnutrition associated with chronic disease;
  • Crohn’s disease, ulcerative colitis, or a similar gastrointestinal disorder;
  • epilepsy or a similar condition that causes debilitating seizures;
  • multiple sclerosis or a similar condition that causes persistent and debilitating muscle spasms;
  • post-traumatic stress disorder;
  • autism;
  • a rare condition or disease that affects less than 200,00 persons in the United States, as defined in Section 526 of the Federal Food, Drug and Cosmetic Act; and
  • chronic or debilitating pain in an individual (if a physician determines that the individual is at risk of becoming addicted to, overdosing on, or is allergic to the regular opiate-based medication.

For those individuals who do not qualify (i.e., do not suffer from one of the listed diseases), Proposition 2 allows the individual to appeal to a board of five physicians for special permission.  That being said, there are restrictions to how and when marijuana can be used by those with medical prescriptions.  These include:

  • No public use of marijuana, except in the case of a medical emergency;
  • No smoking marijuana;
  • No operating a motor vehicle while using marijuana;
  • Always carrying proof that the user is allowed to use marijuana;
  • Keeping only a limited amount of marijuana on one’s person;
  • If authorized to grow them, keeping only no more than six marijuana plants at one’s home.

Not exactly recreational, but certainly more reasonable than reserving the pain alleviating qualities of marijuana for only those who are terminally ill.

  1. USE IN CRIMINAL CASESWhen discussing the effects of Proposition 2 in the world of criminal law, there is one matter in particular which should be stressed: a change in the law does not absolve violations of previous laws. If you were convicted of a possession charge prior to 2019, the new law does not give you legal grounds to challenge the matter.  You might even be caught possessing marijuana on December 31st at 11:59 p.m., and you could still be charged based on the old laws – Proposition 2 will not protect you.  That said, a good attorney might be able to persuade the prosecutor to be lenient, given the way the law is leaning, so if you do get stuck in that particularly unfortunate situation, it’s worth getting a consult.

Marijuana has long been a tricky issue in the law: the last thirty years have seen it go from outright illegal and severely punished, to use in medical treatment and even released as a recreational drug.  Today, some 33 states have laws that allow the use of marijuana to one extent or another, and with Utah joining that number, it seems clear that the responsible use of marijuana is here to stay, in one form or another.  And although the federal government has yet to relax their no-tolerance policy of marijuana possession or use, it would not be surprising to see marijuana become a deciding factor in some future presidential campaign.

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