Medical cannabis vape ban to be lifted?

Latest on court ruling and CCC hearing

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by Grant Smith

In short, the ban on medical cannabis vape products in Massachusetts will lift next Tuesday (11/12/19) in the absence of either 1) a court injunction (unlikely) or 2) a quarantine order issued by Cannabis Control Commission (CCC) executive director Shawn Collins based on evidence of a specific product (or products) posing a risk to public health.

For those unaware of where things stood heading into today's hearing, the current ban on medical vape products (both flower and oil vapes) will be lifted next Tuesday (11/12/19) unless the CCC chooses to enact a ban (or administrative quarantine) before that deadline.

This was the result of a court ruling, by Judge Douglas Wilkins, which makes clear that the current ban on medical cannabis vape products is illegal by noting, "[t]he legislature did not want DPH to regulate medical marijuana, but the Emergency Regulations do just that". The Judge also went one step further, and noted that the CCC itself may not even have the authority to ban medical cannabis vape products (per the Judge's reading of St. 2017, c. 55 Section 44 (as codified at MGL chapter 94 I section 7)). The Judge notes specifically that DPH regulations, issued in 2017 per 105 Code Mass Regs. Section 725.100 (A) (3), mandate that "registered marijuana dispensaries "must make vaporizers available for sale to registered qualifying patients."" (Ruling, page 5)  Judge Wilkins goes on to note that "[a] similar regulation was later adopted by the CCC as part of its current regulations (935 CMR Section 501.100 (1)(c) (2019)." (Ruling, page 6)

As a result of that decision, the CCC took up the issue of the vape ban at its hearing today.

During the debate of a motion to reconsider current CCC regulations related to vaping, Chairman Hoffman attempted to suggest that a quarantine of vape products should be enacted by the CCC now (even without evidence of harm) to prevent the ban on medical vape products from lifting on Tuesday.

Each of the 4 other Commissioners (Title, Flanagan, Doyle and McBride) objected to the Chairman's request on the grounds that taking such a step, absent compelling evidence of a specific product (or products) causing harm, would be counterproductive and undermine the existing regulatory framework which exists to ensure consumer safety.

Following that discussion, the Commission voted in favor of a motion to begin the process of reviewing its current regulations related to cannabis vape products (the motion also reaffirms that the executive director of the CCC already has the authority to initiate a quarantine of cannabis products should there be evidence to justify such an action).

It should also be noted that the CCC's executive director, Shawn Collins, committed to considering a quarantine of vaping products should evidence be presented to support such an approach. If that evidence exists, Collins may potentially issue such a quarantine before Tuesday (although it is possible that would apply only to oil based medical cannabis vapes, rather than flower vapes). 

Related to that quarantine, at the request of Commissioner Title, Director Collins agreed to formally request that the DPH present to the Commission any relevant evidence that would support, or otherwise, a potential quarantine of medical cannabis vape products. 

Thus, as things stand, the CCC has expressed a consensus against banning medical vape products for the time being. 

As a result, unless an emergency injunction is issued by a court (which seems unlikely), the ban on medical vape products will lift next Tuesday at 12:01 AM (11/12/19). As noted above, whether that ban is partially reinstated by way of a CCC adminstrative quarantine of some vape products is yet to be determined. 

This issue may also still be considered by the Massachuetts Supreme Judicial Court (SJC) in the future, but, for now, it seems the vape ban will be partially lifted come Tuesday.

However, with all of that positive news, it should be made clear that the portion of the ban covering recreational cannabis vape products (and nicotine products) is still in effect.

To that end, the Baker administration has announced they will hold a public hearing (wherein public comment will be accepted) on those portions of the vape ban still in effect on November 22nd.