H.B. 105
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7 LONG TITLE
8 General Description:
9 This bill amends provisions of the Controlled Substances Act and the Utah Health Code
10 related to hemp extract.
11 Highlighted Provisions:
12 This bill:
13 . exempts an individual who uses or possesses hemp extract, and complies with other
14 requirements, from the penalties related to possession or use of the hemp extract
15 under the Controlled Substances Act;
16 . exempts an individual who possesses hemp extract and administers the hemp
17 extract to a minor from the penalties related to administering the hemp extract to a
18 minor under the Controlled Substances Act;
19 . requires the Department of Health to issue a hemp extract registration card to an
20 individual who meets certain requirements; and
21 . makes technical and conforming amendments.
22 Money Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 This bill takes effect on July 1, 2014.
26 Utah Code Sections Affected:
27 ENACTS:
28 26-55-101 , Utah Code Annotated 1953
29 26-55-102 , Utah Code Annotated 1953
30 26-55-103 , Utah Code Annotated 1953
31 58-37-4.3 , Utah Code Annotated 1953
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33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 26-55-101 is enacted to read:
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36 26-55-101. Title.
37 This chapter is known as the "Hemp Extract Registration Act."
38 Section 2. Section 26-55-102 is enacted to read:
39 26-55-102. Definitions.
40 As used in this chapter:
41 (1) "Applicant" means an individual who applies for a hemp extract registration card
42 under Subsection 26-55-103 (1) or (2).
43 (2) "Hemp extract" is as defined in Section 58-37-4.3 .
44 (3) "Hemp extract registration card" means a card issued by the department under
45 Subsection 26-55-103 (1) or (2).
46 (4) "Parent" means a parent or legal guardian of a minor who is responsible for the
47 minor's medical care.
48 (5) "Physician" is as defined in Section 58-67-102 .
49 Section 3. Section 26-55-103 is enacted to read:
50 26-55-103. Hemp extract registration card.
51 (1) The department shall issue a hemp extract registration card to an individual who:
52 (a) is at least 18 years of age;
53 (b) is a Utah resident;
54 (c) provides the department with a statement signed by a physician that the individual
55 may benefit from treatment with hemp extract;
56 (d) pays the department a fee in an amount established by the department under
57 Subsection (5); and
58 (e) submits an application to the department, on a form created by the department, that
59 contains:
60 (i) the individual's name and address;
61 (ii) a copy of the individual's valid photo identification; and
62 (iii) any other information the department considers necessary to implement this
63 chapter.
64 (2) The department shall issue a hemp extract registration card to a parent who:
65 (a) is at least 18 years of age;
66 (b) is a Utah resident;
67 (c) provides the department with a statement signed by a physician that a minor in the
68 parent's care may benefit from treatment with hemp extract;
69 (d) pays the department a fee in an amount established by the department under
70 Subsection (5); and
71 (e) submits an application to the department, on a form created by the department, that
72 contains, at minimum:
73 (i) the parent's name and address;
74 (ii) the minor's name;
75 (iii) a copy of the parent's valid photo identification; and
76 (iv) any other information the department considers necessary to implement this
77 chapter.
78 (3) The department shall maintain a record of:
79 (a) the names of each applicant to whom the department issues a hemp extract
80 registration card; and
81 (b) the name of each minor receiving care from a parent who is issued a hemp extract
82 registration card under Subsection (2).
83 (4) The department shall make rules in accordance with Title 63G, Chapter 3, Utah
84 Administrative Rulemaking Act, to establish:
85 (a) the information an applicant is required to provide the department under
86 Subsections (1)(e) and (2)(e);
87 (b) the form of the application described in Subsections (1)(e) and (2)(e); and
88 (c) the form of the hemp extract registration card issued under Subsections (1) and (2).
89 (5) The department shall establish the fee described in Subsections (1)(d) and (2)(d) in
90 accordance with Section 63J-1-504 and may not establish a fee that is greater than an amount
91 that will cover the cost the department incurs to implement this chapter.
92 (6) The department may, with an applicant's consent, release the applicant's name and
93 contact information to a survey administrator to investigate the medical response to hemp
94 extract of:
95 (a) the applicant; or
96 (b) a minor under the applicant's care.
97 Section 4. Section 58-37-4.3 is enacted to read:
98 58-37-4.3. Exemption for use or possession of hemp extract.
99 (1) As used in this section, "hemp extract" means an extract from a cannabis plant, or a
100 mixture or preparation containing cannabis plant material, that:
101 (a) is composed of less than 0.3% tetrahydrocannabinol by weight; and
102 (b) contains no other psychoactive substance.
103 (2) Notwithstanding any other provision of this chapter, an individual who possesses or
104 uses hemp extract is not subject to the penalties described in this chapter for possession or use
105 of the hemp extract if the individual:
106 (a) possesses or uses the hemp extract only for medical purposes; and
107 (b) obtains a hemp extract registration card issued by the Department of Health under
108 Section 26-55-103 .
109 (3) Notwithstanding any other provision of this chapter, an individual who possesses
110 hemp extract lawfully under Subsection (2) and administers hemp extract to a minor is not
111 subject to the penalties described in this chapter for administering the hemp extract to the
112 minor if:
113 (a) the individual is the minor's parent or legal guardian; and
114 (b) the individual is registered with the Department of Health as the minor's parent
115 under Section 26-55-103 .
116 Section 5. Effective date.
117 This bill takes effect on July 1, 2014.
Legislative Review Note
as of 2-3-14 5:28 PM
The Utah Legislature's Joint Rule 4-2-402 requires legislative general counsel to place a
legislative review note on legislation. The Legislative Management Committee has further
directed legislative general counsel to include legal analysis in the legislative review note only
if legislative general counsel determines there is a high probability that a court would declare
the legislation to be unconstitutional under the Utah Constitution, the United States
Constitution, or both. As explained in the legal analysis below, legislative general counsel has
determined, based on applicable state and federal constitutional language and current
interpretations of that language in state and federal court case law, that this legislation has a
high probability of being declared unconstitutional by a court.
This bill: (1) defines hemp extract as an extract of the cannabis plant or a mixture containing
cannabis plant material that contains less than 0.3% tetrahydrocannabinol by weight and
contains no other psychoactive substance; (2) gives the Utah Department of Health the
authority to issue authorization cards to individuals who, based on a statement from a
physician, could benefit from treatment by hemp extract or to individuals caring for a minor
who, based on a statement from a physician, could benefit from treatment by hemp extract; (3)
allows an authorized individual to use or possess hemp extract; and (4) allows an authorized
individual to administer hemp extract to a minor.
The federal Controlled Substances Act defines “marihuana” as “all parts of the plant Cannabis
sativa L., whether growing or not,” and only exempts a compound or other mixture made from
the “mature stalks” or sterilized seeds of the plant. 21 U.S.C. § 802(16) (2014). The act lists
marihuana as a controlled substance and makes it illegal to possess a controlled substance
without a prescription, or to possess a controlled substance with intent to distribute the
substance. Id. at §§ 841, 844.
Under the Supremacy Clause in the U.S. Constitution, the U.S. Supreme Court has “long
recognized that state laws that conflict with federal law are without effect.” Altira Group v.
Good, 555 U.S. 70 (2008). Federal law limits preemption under the federal Controlled
Substances Act to those cases where a “positive conflict” exists between the Act and a state
law, such that it is impossible for a party to comply with both state and federal requirements.
See 21 U.S.C. § 903; Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002).
Under the definition used in this bill, substances that meet the bill's definition of hemp extract
need not be made exclusively from the mature stalks or sterilized seeds of the cannabis plant,
and therefore are likely to be considered “marihuana” under the federal Controlled Substances
Act. Any substance that meets the federal Controlled Substances Act's definition of marihuana
will trigger the possession and distribution prohibitions contained in the Act. 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, creating a positive
conflict with the bill and federal law. That positive conflict results in a high probability that a
court will hold that the bill is preempted by federal law and unconstitutional under the
Supremacy Clause.