From Sea to Shining Sea; Keeping Score of State Marijuana Reform

Someday “soon,” federal marijuana prohibition will be repealed, and cannabis commerce will be regulated more like “widgets” and less like nuclear waste. Meanwhile, this month has seen two more states reform state marijuana prohibition, further crippling the feds ability to enforce its war on cannabis by depriving national prohibition enforcers (the Drug Enforcement Administration) of state and local police cooperation to some extent as defined below.

I write to identify the progress in state cannabis reform by observing five categories of state laws:

(1) Full adult use (medical and nonmedical) legalization (state legal production and retail sales);

Maine, Vermont, Massachusetts, Michigan, Colorado, Nevada, California, Oregon, Washington, Alaska and the District of Columbia;

(2) medical cannabis laws (doctor-approved patients with access to home grows — in some states — and/or state-licensed production and retail sales) in place along with decriminalization (fines and confiscation, but no arrest for simple possession);

New Hampshire, Rhode Island, Connecticut, New York, Maryland, Delaware, Ohio, Illinois, Missouri, Minnesota, North Dakota, New Mexico;

(3) medical cannabis laws only;

New Jersey, Pennsylvania, West Virginia, Florida, Louisiana, Arkansas, Oklahoma, Arizona, Utah, Montana;

(4) decriminalization laws only;

Nebraska, Mississippi, North Carolina;

(5) full prohibition (arrest of adults and patients):

Virginia, Tennesee, Kentucky, South Carolina, Georgia, Alabama, Texas, Indiana, Wisconsin, Iowa, Kansas, Wyoming, South Dakota, Idaho.

Note, several states have laws that permit CBD products under a variety of conditions, but few of those states have reliable procedures for assuring legal compliance and immunity from state prosecution for CBD production or sales despite their CBD laws; these states include MS, AL, GA, TN, KY, SC, NC, VA, TX, IN, WN, IO and WY.

National legalization no longer is a matter of “whether,” but now has become only a question of “when.”

DUI Pot: Bad News & Good


Since the moment that the prospect of marijuana legalization became a reality, the race has

been on to invent a simple device to identify drivers impaired by marijuana, as breathalyzers

are used to identify drivers under the influence of alcohol. Such a device would provide an

acceptably objective measure with which a police officer can make an arrest likely to stand up

in court, supporting his determination about the driver’s state.


The bad news is that we’re unlikely to see one. The good news is that soon we won’t need one.

Breathalyzers don’t detect impairment. They measure the concentration of ethanol (the

psychoactive ingredient in alcoholic beverages) in a driver’s breath, which correlates directly to

blood alcohol concentration (BAC). If your BAC is .08% or higher, current law presumes you to

be under the influence and thus subject to arrest. The fairness of that presumption lies in

decades of testing and accident data indicating, according to the National Highway Traffic

Safety Administration, that “the vast majority of drivers, even experienced drivers, are

significantly impaired at .08 BAC in critical driving tasks such as braking, steering, lane changing,

judgment, and divided attention.”


In the case of marijuana, knowing—however accurately—the level of THC (the psychoactive

ingredient in marijuana) in a driver’s breath or body fluids provides no valid basis for presuming

impairment. No body of evidence shows that X mg of THC impairs “the vast majority of

drivers,” and one is unlikely to develop as impairment due to marijuana is a function of not only

the amount of THC consumed, but also the driver’s level of tolerance. Such levels vary wildly

among marijuana consumers, from the untutored novice who is rendered catatonic by a 15 mg

brownie to the seasoned stoner whom it would barely faze.


Measuring actual impairment—as compared to presuming impairment—is not impossible, but

no methodologies have earned widespread acceptance. In the 1970s, General Motors

developed a dashboard-mounted “critical tracking test.” Before the car would go, the driver

was required to keep a wandering needle on a gauge within an acceptable range by turning the

wheel. UMass Dartmouth professor Michel Milburn recently developed a cellphone app to

determine impairment by subjecting users to various physical and mental acuity tests.

The good news is that the threat to public safety presented by driving under the influence will

fade away as self-driving vehicles become ubiquitous over the next decade or two. Cars may

break down, but they don’t get high.


Until then, I have a simple suggestion. Let’s take some of the new marijuana revenue and equip all

police cruisers with video cameras. Let the officer record the operation of the car that drew his

attention and the driver’s response upon being pulled over. If the officer suspects the driver is

impaired, subject him to the standard roadside assessment/field sobriety test under the

watchful gaze of the camera. If the driver challenges his arrest, show the video to the judge or

jury, and let them decide.


If a driver is unable to recite the alphabet, walk a straight line or put virtual square pegs into

virtual square holes, she shouldn’t be behind the wheel, whether her impairment was caused

by alcohol, marijuana, prescription drugs or fatigue.


Facing the Boston Police Strike 100 years ago this year, Governor Calvin Coolidge famously

declared “There is no right to strike against the public safety, anywhere, anytime,” words that

propelled him to the vice presidency. It remains to be established that legal marijuana presents

any greater threat to public safety than illegal marijuana (and nothing like a police strike), but

with video evidence, we avoid any gamble with the public safety.

The Lines Around the Block

When NETA—which has very limited parking—opened its doors to all adults in Northampton last month, the lines stretched around the block. Since then, they have shortened (and grayed), but unless you go at 8 AM, there’s still a long wait.

INSA opened the other day in Easthampton, with lots of parking and no long lines. Why those standing in line at NETA didn’t prefer to hop over to Easthampton instead isn’t clear. Maybe it’s only about easy on/easy off I-91, and says not about changing market conditions.

We won’t see long lines again.

Advice for New Jersey?

Boston Globe writer Dan Adams reports that the New Jersey legislature is expected to soon pass, and the governor expected to sign, a marijuana regulation and taxation bill modeled, in part, on our law.

I haven’t examined the NJ proposal, but the report raises the curious question: Does our law deserve to be seen as a “model”?

Soon it will be two years since the voters of Massachusetts overturned a century of marijuana prohibition in Massachusetts. What governs our rights and duties vis-à-vis marijuana today is Chapter 94G of the General Laws, which includes critical provisions adopted by voters and left intact by the legislature.  Another substantial portion was re-written by the legislature.

The portions left intact include the protections of individual citizens from involvement with the police for personal possession and cultivation, and sharing, common acts among friends yet criminal until recently. 

Another big part of the voter-enacted law is the mandate to the CCC to adopt

procedures and policies to promote and encourage full participation in the regulated marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition and enforcement and to positively impact those communities.

This instruction is the basis for the social equity and economic empowerment programs administered by the CCC.  With the inclusion of that language, Massachusetts is the first state to expressly acknowledge—if not too little too late—the brutal fact that the marijuana prohibition laws were conceived, enacted and enforced as an instrument for the oppression of minorities, principally African-Americans.  

To the extent that New Jersey replicates, or expands on, our effort in Massachusetts to come to terms with that historical reality, we can be proud to be a “model.”

The same can be said as to our removal of personal possession, use, cultivation, sharing, etc., from the province of the criminal law. We did that right.

The legislature re-wrote two significant portions of the law that was presented to the voters as Question 4 in 2016. One was the entire regulatory structure for the licensing of commercial production and distribution.  Although it’s too early to assess the new system, as licensed non-medical operations haven’t opened, we have reason to expect that it will operate as intended, and roll out “directly,” as my grandmother would say. We’ve waited decades; a few more weeks won’t matter.

Where New Jersey should not look to Massachusetts as a “model” is how prospective licensed marijuana producers and distributors are hobbled and treated unfairly by municipalities, in the ostensible exercise of their right to govern the “time, place and manner” of marijuana establishments, and their right to exact concessions though host community agreements. Too many cities and towns have imposed unreasonable restraints and complications through zoning bylaws and have extorted applicants, flaunting the fiction that licensed marijuana operations can be expected to cost the municipality money.  Remarkably—or not—no municipality, to my knowledge, has identified any new costs presented by such operations.  Municipalities have everything to gain, and nothing to lose, by accommodating licensed marijuana establishments. Unfortunately, too few of them have gotten the word.

They will eventually, as they hear echoes of ka-cheng from neighboring towns, and look up and notice that the sky hasn’t fallen anywhere, but by then it may be too late for them to share in the rewards.

September 25, 2018


Massachusetts Federal Prosecutor Announces His Intent Not to Prosecute State-Licensed Cannabis Commerce

The illegality of cannabis commerce -- medical and nonmedical -- under federal prohibition law has not changed, but the enforcement practices of federal prosecutors has changed. See the federal law article under the law tab on this website. Earlier this year (2018), the US Justice Department announced the recission of the formal forbearance from prosecuting state licensed cannabis commerce, medical and nonmedical. The intent of the recission was to enable local federal prosecutors to bring criminal and civil enforcement actions against all cannabis cultivation and distribution, regardless of state licensing or legality.

Under this new federal policy, in states where cannabis commerce now is legal, state licensed marijuana businesses (and applicants for state licenses) have cautiously monitored their local federal prosecutor for guidance on how federal prohibition law will be applied to their work. From the Boston Globe:

The top federal prosecutor in Massachusetts gave an apparent green light Tuesday [July 10, 2018] to the state’s recreational marijuana industry, lifting some of the legal uncertainty hanging over the drug’s imminent commercialization. Andrew Lelling, the US attorney for Massachusetts, said his office would instead focus its resources on fighting the opioid addiction crisis, which claimed more than 2,000 lives here last year.

In a statement, Lelling cautioned he wouldn’t explicitly exempt businesses or individuals from federal laws banning cannabis. But he suggested his office would focus its marijuana enforcement efforts on just a few key areas: the overproduction and diversion of pot to other states, “targeted” sales of the drug to minors, and organized crime — all illegal under state laws and regulations, too.

This announcement does not change federal prohibition law, nor does it grant permanent federal immunity to state-licensed cannabis commerce. Lelling's public statement does, however, provide some relief to entrepreneurs; they may invest and do business for the time being without fear of federal law enforcement, provided they comply with state legalization law including G.L. c. 94G.

Even this prosecutor's commitment does not end all risk for cannabis commerce in Massachusetts. With the support of a private prohibition-advocacy group, several Cambridge commercial abutters -- including the Crimson Galleria -- have sued a state-licensed medical marijuana retailer, Healthy Pharms, located in Harvard Square. They are suing the licensee under the federal Racketeer Influenced and Corrupt Organizations (RICO) Act, which enables private entities or people to bring civil claims for violations of federal criminal laws. The abutters claim that the licensee's operation, despite its state legality, violates the federal prohibition laws and harms their property values. Similar claims are pending in at least one other federal court in Colorado.

The outcomes of the Cambridge case and the Colorado case are uncertain and may take a year or more to be resolved. One resolution could be Congressional action to change federal prohibition law, to protect state-legal cannabis commerce from federal interference.

The Law of CBD: Commercial Legality Under Federal and State Law

Among the components of psychoactive cannabis plants (flowers, stems and leaves), and non-psychoactive hemp (leaves and stems, having no more than 0.3% by weight of psychoactive THC, tetrahydo-cannabinol), is cannabidiol (CBD). CBD has an anti-inflammatory effect on the human endocannabinoid receptor system. Research into CBD's impact on inflammatory disorders, which include many common illness symptoms, has been blocked in the United States with rare exceptions, but studied comprehensively in other countries. The purpose of this post is not to establish or inventory CBD's health benefits; rather, this post describes the legality of CBD extract sales under state and federal law.

Federal Law

The lawyer leading federal court litigation for the national Hemp Industry Association (HIA) –- Robert Hoban of Denver CO –- against the Drug Enforcement Agency of the US Justice Department (DEA), views the legality of CBD on the basis of the plant from which it was extracted. CBD can be extracted from non-psychoactive hemp -– a form of cannabis that looks more like bamboo than leafy, cola-flowering psychoactive marijuana, hemp having no more than 0.3% THC; another source of CBD is the “mature stalk” (stem) of psychoactive marijuana, provided the stem-source contains less than 0.3% THC. Both sources, and thus the CBD extracted from those plants, are legal under federal law, even if trace amounts (under 0.3%) of THC are present in the extracted CBD. From Attorney Hoban's article [with my comments and edits]:

In the HIA Suit, the Court unequivocally determined that hemp (and its derivatives) produced domestically under the ‘Farm Bill’ is not a controlled substance[,] ... finding that the Farm Bill (as it relates to hemp) “preempts” the Controlled Substances Act [federal prohibition law, 21 USCS 801, et seq. (CSA)]; Congress created an exception for hemp from the CSA.  Farm Bill hemp is not a controlled substance.

But what about CBD (or other cannabinoids)?  The DEA’s briefing [public comments on its legal authority to regulate CBD] clearly states that the DOJ does not “seek to control cannabinoids,” and that only cannabinoids derived from marijuana (e.g., flowers and resins of a cannabis plant above .3% THC) are controlled (under the CSA).  And the Court recognized the same.  In other words, CBD (or other cannabinoids) are controlled substances only if derived from [psychoactive] marijuana [excluding stems with under 0.3% THC].  Farm Bill hemp is not a controlled substance – without debate.

Taken further, in the HIA Contempt [litigation], a Stipulation was reached (on May 22, 2018) whereby the DEA issued a directive to federal agencies (Customs and Border Patrol, in particular)[; the stipulation] states that cannabinoids are not controlled substances unless they fall under the definition of [psychoactive] marijuana, and that the “mere presence of cannabinoids” [including THC] in any product or derivative does not render it a controlled [and thus illegal] substance.  Specifically, the DEA issued internal and external directives to Federal agencies, contain[ing] agreed-upon [between the HIA and the DEA] language, which clarified that the mere presence of cannabinoids does not render ANY material a controlled substance. ... In other words, cannabinoids (CBD is one) are not controlled substances. ... The threshold issue is whether the source of the material is lawfully derived from a lawful portion of the cannabis plant, or from hemp produced under the Farm Bill.  If the source is lawful, then the derivatives or extracts are lawful under the CSA – 100%.

State Law

Under state law, hemp cultivation, product manufacturing and sales are regulated under G.L. c. 128, sec. 116-123 (state hemp law), and require licenses issued by the state Department of Agricultural Resources (MDAR) for lawful commerce in all three tasks. That agency has not yet issued comprehensive final regulations for its consideration and award of licenses, although it issued an “Interim Policy” for its “Commercial Industrial Hemp Program” on April 30, 2018. MDAR's interim policy allows commercial hemp cultivation, processing or sale for this year (2018), after a prospective cultivator-manufacturer-retailer submits a hemp license application that the state agency approves. The interim policy explicitly allows CBD extraction from hemp. This interim policy apparently applies only to hemp newly cultivated or processed in Massachusetts; CBD extracted from hemp or the non-psychoactive stems of marijuana produced outside of Massachusetts may be sold lawfully in Massachusetts under the state hemp law and federal law. In any event, CBD extracts are widely available across the country (see the Amazon website), with only random efforts by local law enforcement outside of Massachusetts to determine the source of the extracts (and thus the extracts' legality).


Purchasers of CBD products have nothing to fear from the purchase, possession or use of this non-psychoactive substance, provided the product contains under 0.3% THC. Under the state legalization law (G.L. c. 94G), adults can purchase up to an ounce of any cannabis product lawfully; unlicensed sales without a state license (no final nonmedical retail licenses have been granted as of this date) are illegal for the seller. Businesses intending to engage in commercial hemp cultivation, CBD-extract and manufacturing, and retail sales in Massachusetts of CBD extracted from Massachusetts grown hemp must comply with MDAR's interim policy above. Businesses selling CBD products produced outside of Massachusetts should investigate their wholesalers, to determine that the source of the CBD is lawful under federal law as described above.

The Beginning of the End of Federal Marijuana Prohibition

On Wednesday, April 11, 2018, POTUS Trump made an explicit public commitment -- confirmed the next day by his press secretary -- to sign and implement pending (but previously languishing) bills in Congress to protect states' rights to enact and implement marijuana reform laws: Such a federal law would free state-legal cannabis commerce from most threats of federal prohibition enforcement, while retaining federal marijuana prohibition cooperation with state prohibition agents in unreformed states.

There may be little chance that Congress will enact such reform-state protective legislation this year, or related fixes of anti-money laundering laws and tax laws that make cannabis commerce more dangerous (having to work with cash instead of bank-managed checking accounts) and less profitable (IRC sec. 280E's denial of ordinary business expenses as tax deductions). 

Still this presidential endorsement, of a national policy allowing states to fully legalize cannabis commerce, is a milestone in the ever-accelerating evolution of marijuana policy -- from racist prohibition -- to the healthier and safer legalization policy of state and municipal regulation and taxation of adult use. The Republican Congress is unlikely to drop its embrace of racially-enforced prohibition this year, but consistent national polling demonstrates that growing numbers of their constituents are jumping the sinking ship of prohibition and supporting reform, creating one of the few bipartisan issues in a too-partisan Congress.

The most immediate and effective impact of Trump's pronouncement is its bearing on USAG Sessions' marijuana-jihad, and the enforcement priorities of local federal prosecutors in reform states like Massachusetts. Recalling Sessions' rescission of the Cole Memo -- advising federal prosecutors to defer to state law enforcement on marijuana regulation in the reform states -- in January this year, encouraging local US Attorneys to attack state-legal cannabis commerce operations independently of state law enforcement (and state support for reform policies), Trump's "deal" with Sen. Gardner undermines Sessions' pot opposition. When a general issues orders (to tolerate state reform laws), subordinates are expected to comply, particularly when the general's new order makes more sense than a subordinate officer's (Sessions) anachronistic and dangerous contrary order (prohibition enforcement, resulting in a more pernicious and widespread black market, as legal markets are closed). Thus, while broader permanent relief for cannabis commerce remains to be enacted, Trump's "promise" -- despite his challenge to maintain any policy consistently -- significantly reduces the risks of federal intervention for cannabis commerce operations in strict compliance with state reform law.

Federal prohibition isn't over, but its end is in sight. Trump's remarks definitely brighten, and draw closer, the light of cannabis freedom at the end of the prohibition tunnel. For all the harm Trump has caused, random federal acts of logic and tolerance remain possible, as this news reveals; even a stopped clock is right twice a day. As British Prime Minister Winston Churchill remarked in 1942: "Now this is not the end. ... But perhaps it is the end of the beginning." The War (on Drugs, or at least on cannabis) is ending; now is the time to plan for peace (and cannabis commerce).


The CCC moves into active license application consideration; what applicants need to know

The Cannabis Control Commission (CCC) is tasked with implementing the new state nonmedical cannabis commerce law (G.L. c. 94G; with regulations at 935 CMR 500), and licensing applicants to cultivate, manufacture (extracts and edibles) and/or retail. Predicting the future conduct of a brand new state agency that's still securing staffing and funding – it only began operating last September, and has yet to grant any licenses – is uncertain. The agency's initial activity, however, merits optimism for industry applicants and the municipalities that are open to hosting them.

Before an applicant can file a state/CCC application, however, three tasks must be done before an application will be accepted:

1. You must have control of the real estate on which you plan to operate your licensed business, by purchase, lease or an legally-binding option to do either;

2. You must execute a host community agreement with the municipality in which your site is located; these agreements can set mutual responsibilities, but primarily they set a municipal tax on your operation, for up to 3% of gross sales for up to five years; and,

3. You must convene a Community Outreach Meeting (COM), to give your site's property abutters an opportunity to hear about your operation and ask questions.

For more information on the licensing process generally, see:

For the CCC's Guidance on the COM process specifically, see:

At EvansCutler Attorneys, we can assist you with forming your entity to be licensed, obtaining site control, negotiating host agreements, overseeing the conduct of your COM, compiling your CCC license application, and obtaining municipal special permit relief for your operation's site.

CCC updates municipal guidance

The CCC has issued an updated Municipal Guidance, which will be helpful to municipal officials and applicants. 

Notable is the CCC's statement (page 13)  concerning the consequence of enacting no bylaws:

[a] municipality may determine a proposed marijuana-related use falls under an existing use authorized by its bylaws or ordinances. For the purpose of understanding how to respond to a notification from the Commission that an application has been deemed to be complete, the Commission provides the following interpretation of the limits of local control.

And, instead requiring a "local certification" that the proposed operation is consistent with local law, the guidance provides, on page 13:

Local Permits: Please note that if a local ordinance or bylaw requires local permitting or licensing, the applicant does not need to have the permitting or licensing granted at the time of the notice to a municipality. Instead, the Commission simply needs to know whether such permitting or licensing is available for that particular location.

What it will take to persuade the  Commission that permitting or licensing "is available" for a particular location is uncertain, but reasonable folk should be able to work that out. 

The Guidance will be welcomed in town halls around the commonwealth.

The final regulations are out

The final regulations are out. In volume, they have shrunk from 107 to 88 pages. In substance, they retain the draft’s exceedingly tight control over who may engage in the regulated industry, where they may exercise those rights, and what it will take to become and remain a participant. (The rules apply only to businesses that handle marijuana directly. The providing of  goods and services to licensees or consumers that don't touch marijuana is not governed by these regulations.)

It is now confirmed that obtaining a marijuana license will require, among other things, supreme dedication to detail, organization, planning, time, sweat, frustration, diplomacy, humility, hubris, drive and a lot of money. This is not Silicon Valley. There will be no garage start-ups.

Call them “Plutonian Regs” (with a nod to Bill Downing of MassCann), as the rules evoke a comparable level of security and caution. “Against what?,” one is driven to ask, but this is not the time to go down that road.

I’m disappointed that the final regs perpetuate what I saw as systemic problems in the draft regs, and which I brought to the attention to the CCC. One was the inconsistent use of the term “establishment” throughout the regs, sometimes to mean “entity,” per the formal definition, but often to refer to the facility where the entity does business. The other is the inconsistent subcategorization of licenses, sometimes “classes” and sometimes “types.” This is more than semantic nitpicking; these are seeds of confusion and future litigation. 

There's also something very odd in the regs: the term "Cannabis" is been redefined as excluding hemp, blurring a long-settled taxonomy, namely, that "cannabis" refers to the plant of the genus Cannabis, from whence is produced hemp and marijuana, the former for making things and the latter for consumption. Now, as declared by the new regulations, hemp is excepted from "Cannabis or Marijuana or marihuana," terms that are now regulatorily conflated, but for now remain botanically distinct. Curiously, the definition of hemp declares it to be of the "genus Cannabis."

Call it taxonomic trauma. Looks like an accident to me. 

Back to the serious stuff.

Here's my advice to license aspirants:

Read the regs very thoroughly.  If you are not part of a team that can come together to navigate these rules, stop. Find a niche in the new regulated industry that does not involve touching the plant itself. Anticipate the opportunities that the liberation of cannabis will provide as new generations of consumers emerge, especially seniors, who in my view are the most overlooked group of consumers who have the most to gain by safe access to marijuana and are in need of services and assistance. Help grandma learn to use it safely.  Some say that marijuana will be the salvation of nursing homes.

If you're up to the challenge, no doubt you studied the draft regs, and you don’t need me to tell you to memorize these new ones. By now you should have identified a good location in a hospitable community and cultivated a good relationship with town officials. Watch for the CCC applications.  If you are an Economic Empowerment Applicant having priority, hustle to get your complete application together as soon as possible after April 1.

I’ll write more later, after a second slog through the regs.

Don't call it "Recreational"

This is about insidious nomenclature.  Some history:

Marijuana’s proper botanical name is cannabis. Generations ago, criminalization was facilitated by associating the plant with Mexican immigrants, by adopting their slang, marihuana.  

After medical marijuana took root in California in 1996 (RIP Dennis Peron), a rhetorical vacuum appeared. A term was needed to distinguish medical marijuana from non-medical, and “recreational marijuana” appeared.  Since then, I have winced at its growing use in the media and among policymakers, and admired its avoidance by people such as Steve D’Angelo, who urges the term, “full adult” marijuana.

The basis for my objection is that the term, like marijuana itself, is a slur, a term of denigration.

It denigrates marijuana consumers by declaring all non-medical marijuana use “recreational,” implying that they use it only for fun, when the truth is far different. 

We know.  We’ve heard parents and adult children describe how it brought them together, after years of alienation.  We all know people like writers and artists who use it vocationally, to stimulate their imagination. Some,  it helps overcome procrastination.

Carl Sagan, the astronomer, famously asked, “What’s wrong with using a drug that produces serenity, insight, sensitivity and fellowship,  qualities so desperately needed in this mad and dangerous world?”

Nothing there about recreation.  And recreation is hardly something we need more of. 

Legalization isn't about hedonism; it's about not arresting people.

The word "recreational" does not appear in the law enacted by the voters in 2016, nor as revised by the legislature in 2017, nor in the CCC draft regulations.  It belongs in no town bylaw.

By the end of 2018, as supervision of the medical marijuana program is merged into the CCC,  the distinction between medical and non-medical marijuana will fade as a regulatory matter.  For several more years, there will be separate cash registers in the dispensaries opening their doors to all adults, as card-carrying patients won’t have to pay sales taxes. Soon, however, the hassle and expense of maintaining a card will exceed the expense.

For now, the best term for non-medical marijuana is “marijuana.” One slur is enough.

Isn't commercial marijuana cultivation "agriculture"?

The question is coming up in town halls where volunteer committees are pondering if and how to accommodate commercial marijuana operations, and among entrepreneur teams seeking accommodating towns.

The short answer is “Of course, but not legally.”

Let me explain:

For many years, commercial agricultural operations have been exempt from zoning laws under Section 3 of Chapter 40A, the zoning enabling act. After the voters said Yes to legalization in November of 2016, the legislature, in a last minute/dark of night maneuver, slipped an amendment into the statute, namely,

… provided, however, that the term agriculture ... shall not include the growing, cultivation, distribution or dispensation of marijuana [...].

The effect of this amendment was to deny commercial marijuana cultivators the rights accorded to commercial cultivators of other crops.  Calling your operation “agriculture” no longer gained you any protection from the application and enforcement of zoning laws.

In 2017, the legislature re-wrote the law enacted by the voters,  inserting this provision:

and provided further, that nothing in this section shall preclude a municipality from establishing zoning by-laws or ordinances which allow commercial marijuana growing and cultivation on land used for commercial agriculture [...]. 

Huh? That seems to add nothing of legal substance, as municipalities have always had the right to enact zoning by laws “allowing” nearly anything, and Section 3 of Chapter 94G explicitly gives municipalities the right to enact bylaws governing the “place” of marijuana operations.   One suspects it was inserted for the appearance of conferring greater authority for cities and towns to regulate commercial marijuana operations.

Bottom line:  For purposes of zoning, the growing and harvesting of marijuana is not agriculture. By any other measure, it is.  The conflict here is between the legal definition of agriculture and the definition of agriculture. 

My suggestion?

Avoid the word “agriculture” altogether.  Instead, describe the land use as “commercial marijuana cultivation.”  (Our suggested form of zoning bylaw distinguishes between cultivation in enclosed buildings, greenhouses and outdoors.)

This A word may as well be scarlet.



The Governor Weighs In

Today's Boston Globe reports that the governor's office has sent a 9-page letter to the CCC, thoroughly critiquing the CCC's proposed regulations.

To the extent that the letter points out gaps and inconsistencies in the draft reqs, the critique is welcome. To the extent that it questions opportunities in the draft regulations for small start-ups, including delivery-only services, cannabis cafes and other social consumption establishments, it is a cause for serious concern.

Prospective social consumption and delivery-only licensees need to push back. The CCC will accept comments on the draft regulations until February 15;  final regulations are expected by March 15.




"Options for Municipalities" Posted

In response to numerous inquiries from public officials, we have posted a guidance titled "Options for Municipalities. It contains a discussion of zoning options available to cities and towns, a sample zoning bylaw, a specimen Community Host Agreement, a resolution for acceptance of revenue, and an updated FAQ. 

We note that in recent days, similar guidances have been posted by K-P Law and Weedmaps.


Municipalities: Is Doing Nothing Underrated?

The reaction to legalization among cities and towns in western Massachusetts, been myriad. Wilbraham passed a permanent ban on licensed marijuana establishments altogether.  Agawam, Hadley, and others have enacted moratoria, meaning that no marijuana establishment may operate, and no applications for local approval, will be accepted before a certain date, typically in 2019. Other municipalities are moving with dispatch to have their local laws in place in anticipation of a wave of applications in the spring (Amherst,  Northampton,  Easthampton, Holyoke).

Others are doing nothing.  Is that wise?

Since Governor Baker signed the legalization law as re-written by the legislature last summer, our advice to cities and towns has been to get off their municipal duff and enact laws to “govern the time, place and manner of marijuana establishments,” as the law allows, if they wish to exercise control over marijuana establishments specifically—i.e., different from retail, industrial or agricultural activities. In our book and elsewhere, we have pointed out that they have the right, but not the obligation, to enact local laws specifically about marijuana, and that any marijuana operation proposed by an applicant to the CCC must be in compliance with local law at the time of application. Thus if a city or town wished to specially govern the time, place and manner of marijuana establishments, its bylaws need to be in place by April 1, 2018, when the CCC is expected to begin accepting applications for licensure.

Cities and towns that enact no bylaws are left in this position:

1. Their zoning laws apply fully to marijuana operations. That is, if somebody wanted to open a marijuana product manufacture license, she would need the same approval, under existing zoning, as if she were opening a widget factory, typically a special permit and/or site plan approval from the planning board or zoning board of appeals, a familiar process involving formal notice, a public hearing with the opportunity of all to be heard, and an appeal period  before any decision is final, during which any aggrieved person with standing can challenge the decision as beyond the authority of the board.

2. No marijuana establishment could operate unless it entered into a written “community host agreement” with the municipality. Unlike a special permit or site plan approval, a host agreement would be signed by the municipality’s executive officer(s)—selectboard, mayor, city manager--"setting forth," in the language of the law signed by the governor,

the conditions to have a marijuana establishment or medical marijuana treatment center located within the host community which shall include, but not be limited to, all stipulations of responsibilities between the host community and the marijuana establishment[.]

3. As part of the community host agreement, the municipality may exact a “community impact fee,” but with a few provisos:

*             The community impact fee must be “reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment;"

*              It shall be reasonably related to the costs imposed upon the municipality by the operation of the marijuana establishment or medical marijuana treatment center; and

*             It shall not amount to more than 3 per cent of the gross sales of the marijuana establishment or medical marijuana treatment center or be effective for longer than 5 years.

Wisely, the legislature imposed protections against unreasonable or excessive exaction by requiring “any cost to a city or town imposed by the operation of a marijuana establishment” to be documented.

Whether a municipality is doing the wise thing by enacting no new law turns, in our view, on a factual, not a legal, question. That factual question is whether there is anything about licensed marijuana businesses that require them to be treated, under local zoning laws, differently than other businesses. To put it another way, what is it about marijuana that requires separate local rules? What actual threat does the prospect of a commercial marijuana operation pose to the public health or safety, or the character of the community that the existing special permit/site plan approval process cannot adequately address?

If such a threat can be identified, then additional local regulations are justified. If not, a year from now cities and towns who relied on existing zoning processes and signed a host agreement will be reaping the economic and other benefits of new local commerce while others ask “What was the fuss all about?”

The challenge to municipal officials today is to justify the fuss by identifying those threats.



The Sessions Kerfuffle

On January 4, 2018, Attorney General Jefferson Beauregard Sessions rescinded the Cole Memorandum, under which federal prosecutors refrained from interfering with state-compliant commercial marijuana operations. 

The response has been heartening to cannabis commerce entrepreneurs.. No elected public official, state or federal, in Massachusetts or in any other state--and no Republican--has issued a statement of support. Better yet, our  elected leaders in Massachusetts, despite their opposition to legalization in 2016,  have renounced the action as threatening to jeopardize a smooth rollout of legalization. Better than reform advocates could ever have done, the AG has brought legalization powerful new friends and marooned him and his boss, the president, on the diminishing island of prohibition in a rising sea of tolerance. 

It's curious that much of the public chatter has focused on the U.S. Attorney in Massachusetts, Mr. Lelling, but none on the role of congress. Lelling cannot repeal federal prohibition, but Congress can.  If legalization enjoys support from a majority of Democrats, Independents and Republicans, what's the political gain in keeping marijuana in the federal controlled substances act in the first place? Who is the prohibition constituency?


CCC releases "Guidance for Municipalities"

In recent days the CCC has promulgated a document titled "Guidance for Municipalities Regarding Marijuana for Adult Use."   It is mostly a repeat of the statute and draft regs, but aimed at the municipal audience and worth a close read by prospective applicants. 

"During the application process," the Guidance instructs, "applicants will be required to demonstrate that they have held a community outreach meeting within the past six months, that they have executed a Host Community Agreement with the municipality and that their proposed location is compliant with zoning bylaws or ordinances at the time of the application."

"During the application process" appears to be at odds with the draft regs, which say that documentation verifying the "community outreach meeting" is to be filed as part of the application itself, i.e., upon commencement of the application process, not "during." 

Similarly, the application will require "[d]ocumentation in the form of a single-page certification signed by the contracting authorities for the municipality and the applicant evidencing that that applicant for licensure and host municipality ... have executed a host a community agreement."

As for documentation of compliance, this demand could be a serious problem for some applicants, especially where a city or town has adopted no special marijuana-related bylaws and the applicant's proposed operation is allowable as a matter of right without special zoning approval (for example, a retail shop in a retail zone, or a cultivation operation in an agricultural zone).  With no local laws prohibiting, curbing, or otherwise governing marijuana operations, what municipal official can be expected to certify that such an operation is in compliance with local law, even though it is entirely?  

The CCC has gone overboard with requiring a town official to certify that a proposed use, not yet constructed, compies with local zoning laws. The statute clearly imposes on the municipality the obligation to notify the CCC--and thus thwart an application--if the applicant's proposal does not comply with local zoning. That is reasonable. The draft regs, however, turn that around, and impose on the applicant the burden to find someone in city hall to certify that his proposal does comply with local law.  Good luck finding someone.

Bottom line:  Under the draft regs, before an application is delivered to the CCC, the applicant must have satisfied these three requirements: the Community Outreach Meeting, the Host Agreement, and “certification from the municipality in which the Marijuana Establishment will be located” that the licensed operation complies with local zoning.  Hopefully, they will receive much scrutiny during the public comment period next month, and the final regs, to be issued by March 15, will revise them substantially.





CCC Announces Public Hearings on Draft Regulations

The Cannabis Control Commission has announced public hearing dates and times to receive public comments on the draft regulations issued in late December. Western Massachusetts hearings are scheduled as follows:

Pittsfield:  Monday, February 5, 8:30-11:00 AM, Berkshire Community College

Holyoke: Monday, February 5, 2:00-5:00 PM, Holyoke Community College

Greenfield: Tuesday, February 6, 10:00-1:00 PM, Franklin Regional Council of Governments.

It is extremely important—and a rare opportunity-- that individuals having an interest in how the rules are written attend and participate in the hearings.  Review the instructions in the CCC announcement about testifying and submitting your testimony.