Robert Gehrke: Rural Utah could lose access to medical marijuana if the state doesn’t make these changes

Robert Gehrke

For all the abuse — much of it deserved — that legislators took for tinkering with Utah’s medical marijuana initiative, there was one idea they came up with that made a lot of sense: Tapping into the network of county health departments to act as a dispensary network.

It solved a major problem hanging over the entire program, which was how to make sure that rural Utah has access to the product in the first place?

Left to the market, it’s easy to see that the seven licensed private dispensaries would set up shop in big metro areas. If you went to the time and expense of getting a dispensary license, would you look to locate in Salt Lake County, which has more than 1.1 million people, or Beaver County, which has about 6,500?

If you chose the latter, it’s a safe bet your venture would be short-lived. So distribution through the county health departments made a lot of sense. It would guarantee a provider for patients who don’t live along the Wasatch Front and otherwise might not be able to get the cannabis that might alleviate their suffering.

While most states only license and regulate medical marijuana programs, Utah’s model puts the state and counties squarely in the middle of the supply chain. It was a novel approach. (It’s also socialism, so, shhh. Nobody tell Rep. Chris Stewart.)

However, it also created unique problems that were flagged by patient advocates — it is part of a lawsuit challenging the state’s medical marijuana law, which litigants call a “felonious, full-service drug cartel” — and were expressed months ago, behind the scenes, by county attorneys.

This week, Davis County Attorney Troy Rawlings and Salt Lake County District Attorney Sim Gill went public with their reservations, saying they would recommend that their county health departments not participate in the distribution program.

Their arguments are logical. Even though it’s legal across a significant majority of the country, marijuana remains illegal at the federal level and, as you may remember from high school civics class, federal law trumps state law.

Gill — who advocated for the legalization of medical marijuana for years and supported Proposition 2 — told me Wednesday that the new state law puts him in an untenable spot. As a lawyer, he can’t recommend that his clients knowingly break federal law.

But on a larger scale, he said, it could jeopardize “scores of millions of dollars” in federal grants that Salt Lake County and its health department receive.

“We have to certify when we receive those monies that we’re not going to be engaged in knowing and intentional violations, and we’re going to comply with all the regulations and laws,” he said. Participating in the state’s distribution program would be “putting other federal grants at risk, not just the health department, the county as a whole, and the loss of that revenue would have to be backfilled on the backs of Salt Lake County taxpayers.”

Now, there is some question as to whether county funds would be jeopardized. For years, the Rohrbacher-Farr Amendment has prohibited the Justice Department from pulling grants to impede state marijuana laws.

And last week, Gov. Gary Herbert received a letter from the U.S. Department of Health and Human Services stating that, while federal funds can’t be used to help implement a marijuana program, “Utah’s Medical Marijuana law will not affect the state’s eligibility to apply for HHS grants, nor will it affect the outcome of the state’s application.”

For Davis and Salt Lake counties, an abundance of caution won’t hurt. As I mentioned, the licensed private dispensaries will almost certainly all be clustered along the Wasatch Front. Patients in that area won’t just have access, they’ll have choices, when it comes to getting their prescriptions filled.

But if rural counties use the same logic Gill and Rawlings deployed, it could be a major setback for cannabis access around the rest of the state.

Herbert’s office issued a statement that all of the county health departments and others whose job it is to implement the medical marijuana program “should do so in a manner that is consistent with the timeline prescribed in the Utah Medical Cannabis Act. Any suggestion that the current law would require county employees to be ‘drug dealers’ is unprofessional and inappropriate.”

There is a reasonable solution to this problem.

Rather than the state relying on county health departments to take the risk, however small it may be, counties should be able to opt in as providers. The counties that choose to participate should be allowed to charge a small fee to offset costs and the state should, to the extent reasonable, indemnify the counties from liability.

Where the counties choose not to participate, the state, which is apparently comfortable with the ramifications of running the program, should become the provider of last resort.

Herbert alluded in his statement to upcoming meetings with legislative leaders and there is already talk of a special session to address the issue, which would be appropriate, since, to the program is on a tight schedule, with pharmacies expected to open next spring.

By taking that approach, counties like Salt Lake could be served by private dispensaries if they choose, counties wouldn’t be compelled to take on risk and, most importantly, patients across the state would have access to the medicine they need.