The Unnecessary Legal Risks of Utah’s QMP Program
To obtain a medical cannabis card in Utah, a patient must have a qualifying condition under the Utah Medical Cannabis Act. Then they need to meet with a QMP (Qualified Medical Provider) to discuss their medical history and condition that could be helped with the use of medical cannabis. A QMP is a medical provider, advanced practice registered nurse or physician assistant who has completed specific training in medical cannabis and registered with the DEA (Drug Enforcement Agency) to prescribe medical cannabis to qualifying patients in Utah. Because cannabis is still listed as a Schedule I controlled substance and illegal at the federal level, Utah’s QMP program is presenting unnecessary legal risks to the physicians and other medical professionals who participate in it. In an open letter regarding Utah’s medical cannabis statute, the law firm of Plant & Planet explains how the law puts the medical providers at risk legally, but could be remedied with a few moderate changes.
Free Speech
Defenders of Utah’s cannabis laws claim that Utah physicians are protected legally to prescribe cannabis based on their Constitutional right to free speech under the First Amendment. Specifically, they point to a court case (Conant v. Walters) which held that a physician’s recommendation for the use of cannabis in some scenarios is protected as “professional speech” under the First Amendment. However, the court also noted even though the mere recommendation for medical cannabis may be protected speech, other more explicit actions such as requiring a physician’s signature or equivalent authorization could amount to criminal conspiracy in addition to aiding and abetting in violation of federal law.
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Under Utah’s medical cannabis law, a patient is required to receive from his/her physician a recommendation that is the equivalent to a prescription. This is because cannabis dispensaries in Utah are required by law to retain records of the name, address and telephone number of the medical provider who recommended the cannabis. In doing so, the physician is not merely recommending the usage of medical cannabis, but is specifically enabling and assisting the patient in obtaining that medicine, which would be considered in violation of federal law.
Non-Enforcement in Other States
Since the federal government hasn’t enforced certain aspects of the Controlled Substances Act in other states when it comes to medical cannabis, it could be presumed that this will remain the case in the future. However, this would be a false assumption. How the law is enforced largely depends on the administration at the time. Under the Obama administration, the Justice Department stated in the 2013 Cole Memorandum it would not enforce federal cannabis laws against states that had legalized cannabis in some way. This policy was later rescinded under the Trump Administration.
DEA Registration
Utah law requires that QMPs demonstrate that they have “the authority to write prescriptions.” However, the authority to write prescriptions is granted by the DEA, which considers non-hemp forms of cannabis illegal. Therefore, the Utah law inexplicitly ties a QMP’s qualifications to the same federal agency charged with enforcing federal drug laws, which deems cannabis illegal. There’s no reason to assume the DEA couldn’t decide one day to change course and fully enforce the Controlled Substances Act against physicians in Utah for prescribing cannabis.
Recommendations
In order to minimize (if not completely eliminate) these legal risks, the Utah legislature could make a few minor changes to the law. First, the legislature could change the law so that physicians’ guidance to patients regarding medical cannabis falls under their right to free speech as opposed to more explicit actions that could be considered in violation of federal law. In addition, Utah’s QMP program should be abolished altogether. Not only is this yet another obstacle to patient’s access to medical cannabis, requiring registration with the DEA (the same agency that prohibits cannabis federally) is counter-intuitive and again, puts them and the state at legal risk.