Massachusetts Reinforces Support for the Medical Necessity Model

As more and more states are shifting to a work-from-home environment and closing down non-essential businesses, we have seen a conflict in gubernatorial instructions on whether cannabis is a protected class of business that falls under “essential infrastructure” or “essential business.” Earlier this week, we compared the approach New York and California have taken to permitting businesses to continue to operate.

The former, medical-only state received a carte blanche endorsement as an essential business in New York to provide (often immunocompromised) patients with necessary medication. California, on the other hand, remained silent in executive orders, and left it up to local mayoral representatives to make determinations as they saw fit and best for their respective communities.

Massachusetts has taken a middle road, as Governor Charles D. Baker issued COVID-19 Order No. 13 on March 23, 2020 which becomes effective March 24, 2020 at noon. This order identified an extensive list of “COVID-19 Essential Services”. As with California and New York, cannabis-related business were not explicitly listed on the list of essential services, but rather addressed in an addendum by the Massachusetts Cannabis Control Commission (“MCCC”).

Progression to Shut-Down

In an effort to contain the spread of the virus, the Massachusetts Cannabis Control Commission issued an “Industry Bulletin on the Coronavirus State of Emergency” on March 13, 2020 which highlighted mitigating measures that licensees and certifying health care providers should use to ensure, preserve, and promote public health. Futhermore, the MCCC recommended that Medical Marijuana Treatment Centers (dispensaries) may consider the “promotion and geographic expansion of delivery service and to remind patients of the ability to acquire up to a 60-day medical grade medical marijuana supply.” This language and recommendation regarding delivery service parallels the actions of many other states such as New York, Michigan, and Washington. (Curiously, Illinois Department of Financial and Professional Regulation would relax laws relating to curb-side delivery on public walkway adjacent to the dispensary, but direct delivery was still prohibited.)

On March 23, 2020 the MCCC issued a formal Summary Cease and Desist Order (Case No. 2020AM-0001, 935 CMR 500.350: Cease and Desist Order and Summary Suspension Order) which clarified and expanded the prior directives of the MCCC in line with Governor Charles D. Baker’s March 23, 2020 Covid-19 Order No. 13 (Essential Services Order).

This Order went into effect on March 24, 2020 at 12:00 noon EST and formally excluded all licensed Marijuana Establishments and Medical Marijuana Treatment Centers conducting adult-use retail at non-colocated premises as non-essential functions. (Co-located Marijuana Operations under Massachusetts law are defined as an entity operating under both a RMD registration pursuant to 935 CMR 5001.000: Medical Use of Marijuana and under at least one Marijuana Establishment license pursuant to 935 CMR 500.000: Adult Use of Marijuana on the same premise.) These establishments were ordered to close their physical workplaces and facilities to workers, customers, and the public as of noon and not to re-open before 12:00 noon on April 7, 2020. Independent testing labs providing the required testing to medical-use operations were not subject to the Cease and Desist Order.

Curiously, the Order did not stymie all non-medical cannabis related industry and carved an exception for maintaining existing cultivation operations for adult-use. The Order specifically considered operations permissible to include feeding and irrigation of existing plantings, undertaking pre-existing integrated pest management, and preventative maintenance programs—but shall not include making new cultivation plantings. Should an organization wish to challenge the Order for a special dispensation, they may request hearings within twenty-one (21) calendar days after the effective date of the Cease and Desist Order.

Long Term Projection

Although each state has taken a different approach to recreational vs. medical adoption of cannabis laws, Massachusetts has firmly straddled the issue and stands by its medical program as an integral and essential component to emergency services. The Cease and Desist Order from the Cannabis Control Commission is effective to preserve the right of patients to access necessary medical relief, but also begs consideration for adult-use registered organizations and the conservation of business interests and resources post-state of emergency.

Adoption of Orders like these make sense on a fundamental level and endorse the notion that there is a shift and acceptance on a legislative scope to acknowledge the prescribed application of cannabis medically. Treatment of Cannabis on a medical level and recognition of the sale and industry behind it is a supporting step towards de-scheduling at a federal level. While this is certainly a cautiously progressive measure, this development does not only ring of roses and buds; such state action also reflects a lingering trend of vilifying the recreational use of cannabis as a “drug”—after all, liquor stores are still open and considered an essential business nationally.

Anthony De Ingeniis Esq., is a New York-based attorney with the law firm Goldberg Segalla LLP, elected in 2018 to be the youngest member of the firm’s  Cannabis and Hemp Law Leadership Committee. He focuses his practice on cannabis law issues emerging in the market and has a passion for the science behind the plant stemming from a biomedical background and Bachelors of Science from SUNY Stony Brook University. Anthony also acquired a Master of Arts in Education from Stony Brook University and enjoys teaching at any level, from adolescent to adult. Anthony also practices with Goldberg Segalla’s Intellectual Property and General Liability litigation teams and applies his experience in these disciplines to his representation of clients in the cannabis and hemp industries.