Medical marijuana vaping ban up in air

Judge: DPH overstepped its authority, up to Cannabis Commission

STATE HOUSE NEWS SERVICE

WHEN THE CANNABIS CONTROL COMMISSION meets Thursday, it could determine whether Gov. Charlie Baker’s temporary ban on vaping product sales should apply to medical marijuana patients or whether to allow the prohibition on medical marijuana vapes to expire next week.

A Superior Court judge ruled Tuesday that the emergency state regulations banning the sale of all vaping products “are very likely invalid” as they relate to medical marijuana patients and ordered that the state may not enforce its prohibition on “marijuana vaping products to medical marijuana card holders” starting next Tuesday afternoon unless the commission issues its own emergency regulations to keep the ban in effect.

A group representing medical marijuana patients intervened in the challenge to Baker’s temporary vape sales ban, arguing that the Cannabis Control Commission (CCC), not the Department of Public Health, is the only state agency that can regulate marijuana products. The group’s premise is that the 2017 law that created the CCC “transferred authority to regulate all legal marijuana” from DPH to the CCC and that the Legislature was clear in its law that the CCC should be the lead regulatory body.

Judge Douglas Wilkins, in an order issued Tuesday, agreed and said the DPH “likely exceeded its authority by banning vaping products used by medical marijuana card holders.”

“[I]n crafting legislation to create the CCC and implement a new regulatory scheme concerning marijuana, the Legislature determined that it was likewise appropriate for the CCC, and not DPH, to regulate the medical marijuana industry,” Wilkins wrote. He later added, “The Legislature did not want DPH to regulate medical marijuana, but the emergency regulations do just that. The conflict with the legislative scheme could not be clearer.”

Baker’s office did not respond to a request for comment on Wilkins’ ruling Tuesday. Wilkins’ ruling Tuesday is limited to marijuana vaping products for registered medical marijuana patients and does not affect the ban on nicotine or non-medical marijuana vaping.

The judge, who was appointed to the Superior Court bench by Gov. Deval Patrick in 2010, said it “is not even clear what power DPH actually claims here” because the emergency regulations state that the CCC “shall enforce” the ban. That direction to the CCC, Wilkins said, shows that “even DPH acknowledges that medical marijuana regulation requires using CCC’s separate authority.”

“Whatever its rationale, however, DPH necessarily is asserting the power to commandeer the CCC to implement DPH’s vision of medical marijuana regulation despite CCC’s exclusive authority over that subject,” he wrote. “That squarely violates the applicable statutes.”

After making clear that he agrees that the CCC has sole authority to regulate medical marijuana vaping products, Wilkins said that the CCC should be the agency to issue an emergency regulation if it feels it is necessary.

“Like any Massachusetts agency the CCC itself has full authority to adopt emergency regulations … It may choose to promulgate the emergency regulations in whole or in part. Or, it may choose not to promulgate them,” Wilkins wrote. “The choice needs to come from CCC, not DPH or this court.”

To give the CCC an opportunity to adopt emergency regulations if it wants and to not “disrupt the market,” Wilkins ruled that the DPH-adopted emergency regulations can remain in place for a week.

“It not only respects the statutory scheme, but also allows the legislatively-designated agency to apply its expertise about the medical marijuana program,” he wrote of his decision. “That process might produce the same result as the emergency regulations, but might not.”

The CCC could consider adopting its own emergency regulations when it meets on Thursday. A spokesperson for the CCC said Tuesday that the agency is reviewing the ruling and has no comment at this time. CCC Chairman Steven Hoffman was spotted leaving the State House around 11:45 a.m. Tuesday, about an hour after word of Wilkins’ ruling began to spread.

Wilkins’ ruling suggests that the CCC’s options are to “adopt the emergency regulations in whole or in part — or decline to adopt any ban at all.” But the judge also gives voice to the notion that the “CCC may even conclude that [section 7 of the medical marijuana law] prohibits any emergency ban of medical marijuana vaping products.”

That section of the law includes the line, “No regulation of the commission regarding the medical use of marijuana shall be more restrictive than any rule or regulation promulgated by the Department of Public Health pursuant to Chapter 369 of the Acts of 2012 and in effect on July 1, 2017.”

Wilkins said DPH’s 2017 regulations on medical marijuana required that medical dispensaries “must make vaporizers available for sale to registered qualifying patients,” suggesting that the CCC might not have the authority to limit sales of vaporizers for medical patients. He wrote that the CCC adopted similar language in its own regulations but removed that provision from its new set of regulations that took effect Nov. 1.

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Wilkins wrote that he would not opine as to whether or not that section of the medical marijuana law prohibits any ban of medical marijuana vaping products until the CCC tips its hand.

“In allowing CCC one week to consider emergency regulations, the court does not imply in any way that any version of the emergency regulations is permitted by” the medical marijuana law,” he wrote. “The court will not take no position [sic] on that question until the CCC takes a position, as the agency designated by the Legislature to decide the scope of [the medical marijuana law], in the first instance.”