Massachusetts Department of Public Health Issues New Proposed Medical Marijuana Regulations

In the November 2012 elections, Massachusetts voters passed a ballot question that would legalize marijuana in Massachusetts for medical purposes. The measure passed with over 63 per cent of voters supporting it, and the new law went into effect January 1, 2013, but the state has not issued official regulations yet, and they will not allow dispensaries to operate until the regulations are passed.

On April 10, 2013, the Department of Public Health issued a 45-page list of proposed regulations 105 CMR 725.000 Implementation Of An Act For The Humanitarian Medical Use of Marijuana, giving the public until April 20 to comment. On May 8, 2013 they will vote on the measure, which would go into effect May 28. No dispensaries will open until 2014.

There are several key provisions that medical marijuana advocates find troubling, and they will have the effect of wiping out the caregiver industry, making it extremely difficult to grow your own marijuana, and limiting who can own a dispensary.

The state will allow 35 Medical Marijuana Treatment Centers (MMTCs) to cultivate and sell marijuana. Each treatment center will be required to grow its own marijuana, either at the facility itself or at one off-site location. Wholesale marijuana manufacturing will be banned. All seeds will be tracked and Massachusetts will be adopting the “seed to sale” method of control. Patients will have to choose one of the 35 MMTCs and enter into an exclusive contract with it, and not be allowed to frequent any other MMTC.

Caregivers will only be allowed to have one patient, and patients may have two caregivers. Caregivers must purchase the marijuana or the “MIP” (marijuana infused products, meaning edibles) at an MMTC to provide to the patient, unless a hardship license is granted. If that happens, home growing will be allowed. Home ‘hardship’ cultivation is frowned upon and seen as a last resort only. Testing samples of marijuana at an MMTC would be banned. MMTCs would be required to sell vaporizers, presumably for health reasons.

To obtain a card, a patient must have a bona fide relationship with a Massachusetts doctor, who can issue a card that will be valid for from between 15 days and 1 year. Patients must have a “debilitating” condition that is not specifically defined but would require constant pain and/or nausea. Patients will be allowed to possess up to two months worth of marijuana, which the state estimates to be 10 ounces.

However, a doctor may specify that certain patients require in excess of 10 ounces every two months.

Any MMTC will be required to keep $500,000 in an escrow account, and no one will be allowed to have an ownership interest in more than 3 of the 35 centers. When the state issues licenses, it will look at a number of factors in making a decision. One of these is previous experience operating a medical marijuana facility in another state. The effect of this is to create a bias against local Massachusetts corporations, as no Massachusetts entity could possibly have experience, as well as creating a bias against corporations with less money. Very few corporations can just set aside a half million dollars to place into an escrow account. Also, after receiving a license, the MMTC must be open and be operational in 120 days or risk being shut down.

Advertising will be extremely restricted and the use of the marijuana leaf or the depiction of minors would be banned. There can be no sales via the internet.

As of right , having a Massachusetts card has little effect. No one can even apply for an application to own a MMTC until these regulations are finalized. There will be no dispensaries in Massachusetts until 2014 at the earliest, Until then, patients must rely on caregivers, who are allowed to grow for themselves during this interim period.

Since caregivers can only have one patient they can’t afford to invest a lot in advertising with the result that it is not easy to find a caregiver at the moment. The only other option is going to a dispensary in Rhode Island, which recognizes Massachusetts law. Maine law states that they shall honor out of state patients with a card but the dispensary owners have decided not to honor any Massachusetts cards, and to not honor Maine cards issued to Massachusetts residents, until everything is straightened out.

Other proposed regulations relate to security, surveillance, record-keeping, and MMTC maintenance.

It is a slow process, but we are getting there. The tides have turned and the people will have their say!

By David L Tamarin, Esquire