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Utah bill to OK cannabis supplements may be unconstitutional

Published February 5, 2014 5:00 pm

Medical marijuana • Legislative lawyers warn the bill could be unconstitutional.
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

A bill that would allow authorized Utah health consumers to purchase and use "hemp extract" — non-intoxicating cannabis oils — without fear of prosecution would likely be declared unconstitutional if challenged in court, say legislative attorneys.

HB105 defines "hemp extract" as "an extract from a cannabis plant, or a mixture or preparation containing cannabis plant material" comprised of less than 0.3 percent tetrahydrocannabinol – or THC, the chemical that gives users a high – and that "contains no other psychoactive substance."

Sponsored by Rep. Gage Froerer, R-Huntsville, the measure would give the Utah Department of Health authority to issue cards to individuals who, according to a signed doctor's statement, may benefit from treatment with a hemp extract.

But its definition of "hemp" conflicts with the U.S. Controlled Substances Act, which makes it illegal to possess marijuana without a prescription and defines marijuana as "all parts of the plant Cannabis sativa L, whether growing or not," says a constitutional note attached to the bill. The act exempts compounds made from the "mature stalks" or sterilized seeds of the plant.

Froerer sponsored HB105 to give parents of children with epilepsy access to a cannabis oil produced in Colorado shown to have powerful anti-seizure properties — a product made from the whole plant, including its mature flowers or buds.

Makers of the oil say it's high in cannabidiol (CBD) but so low in THC that it meets international agricultural standards for hemp.

But the process used to make it qualifies the oil as marijuana under federal law, say legislative attorneys.

"An individual possessing or using hemp extract or administering hemp extract to a minor likely could not comply with the provisions of this bill without also violating federal law," they argue. Under the Supremacy Clause it's highly probable that a court would rule the bill unconstitutional, they said.

HB105 was just released and hasn't come before a committee.

Utah Speaker Becky Lockhart, R-Provo, said it presents a tough choice for lawmakers who will have to do some "soul-searching."

"Utah has been very clear that the legalization of marijuana is not a path we want to take. But when you see real people and real children [suffering] ... and this product seems to be helping those children, you have to think long and hard," she said.

Tribune reporter Robert Gehrke contributed to this report.

kstewart@sltrib.com

Twitter: @KStewart4Trib