[authors: Steven A. Baddour and Daniel Connelly]
In November 2012, Massachusetts voters passed a ballot initiative authorizing medical marijuana. This article examines some of the obstacles faced by the industry, legislators, regulators and law enforcement officials prior to the full implementation of the law.
On November 6, 2012, 63 percent of voters—just shy of 1.9 million people—in Massachusetts authorized the establishment of medical marijuana centers and the personal use of marijuana to treat a variety of illnesses. There is no doubt the medical marijuana industry is eagerly looking toward Massachusetts as the next frontier, but a careful review of the voter-approved law provides a significant amount of discretion to state regulators on the implementation of the law, and lawmakers on Beacon Hill will have an opportunity to insert themselves into the debate on how (and whether) to make this new law a reality.
The law, which takes effect on January 1, 2013, is broadly written and authorizes the Massachusetts Department of Public Health (DPH) to promulgate regulations to allow “up to 35 non-profit medical marijuana treatment centers” to be licensed in the state (emphasis added). This point is crucial because, as seen with other enterprises in Massachusetts, like the licensing of casinos, it is frequently noted by opponents of the initiative that “up to” has been argued to theoretically include the number zero. Therefore, it is conceivable that DPH will not immediately undertake the Herculean task of regulating this new industry in the allotted and extremely short timeframe.
Another potential loophole in the law, but one favored by those seeking to benefit from the legalization of medical marijuana, is that physicians may allow their patients to use medical marijuana beginning on January 1, 2013, without any state oversight. Under Section 13, a physician’s written certification is the equivalent of a valid medical marijuana “registration card,” and possessing such a card is guaranteed protection against prosecution for marijuana possession under the new law. Although this power bestowed upon physicians is meant to be temporary and last only until DPH promulgates final regulations, it nonetheless highlights a potential problem for regulators, law enforcement officials, patients and the public at large.
The new law provides DPH with extensive discretion on how to implement its provisions, including the registration and application process for patients, treatment centers and dispensary agents. A cursory review of the law suggests that these entities are required to provide only basic information (such as names, addresses and, in some cases, “operating procedures”), but the regulations to be drafted by DPH will likely exceed these requirements. Only time will tell if DPH will go so far as to make the application and registration process so onerous that it will discourage patients and the medical marijuana industry from taking advantage of the new law.
Finally, one of the most significant wild cards in this discussion is the Massachusetts Legislature, which has repeatedly tabled legislative proposals that were virtually identical to the ballot question passed in November. Again, time will tell if policymakers will tinker with the new law (or perhaps repeal it altogether) as they have done with other ballot initiatives in the past. However, allowing this industry to thrive will be appealing in part because of the potentially significant increase in revenue as a result of the sales, corporate and payroll taxes that will necessarily follow the establishment of medical marijuana centers in Massachusetts.
What does all of this mean for Massachusetts and the multibillion dollar medical marijuana industry? The next few weeks will be a critical time for this initiative and the details of how it plays out will be key in determining if this industry will be riding high off its November 6 victory.