Cannabis Retailers and Regulators Adapt for COVID-19 Restrictions

Foley Hoag LLP - Cannabis and the Law
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Foley Hoag LLP - Cannabis and the Law

The global outbreak of COVID-19 is disrupting lives and businesses across the world, and the cannabis industry and its customers are no exception. Our new reality is not only of great financial concern, but also presents serious public health challenges. Cannabis patients, of course, need to maintain access to essential medicine.

While many states have rightly concluded that medical marijuana dispensaries are an “essential service” that may remain open during shutdowns in the same manner as pharmacies, in adult use jurisdictions, many patients who need medical cannabis have forgone patient registration due to administrative burden, privacy concerns, or other reasons. At least two-thirds of adult-use consumers utilize cannabis for management of medical conditions and symptoms.

We summarize the allowances states and cities have made for medical cannabis operations during this daunting crisis below and offer the following recommendations to ensure all patients are afforded safe access to medicine:

  • Regulators should consider adopting emergency regulations to authorize or relax adult use and medical home delivery restrictions for businesses that can operationalize to delivery modes in compliance with necessary security regulations and safe social distancing measures.
  • In the event of a “shelter in place” or other emergency order, states should consider allowing dispensaries to remain open insofar as they ensure social distancing as appropriate in light of state and local orders and their physical locations by using reserve/pay ahead technologies and new methods of order fulfillment and pickup (such as drive-through, or curbside transfer at a patient/customer’s vehicle or in a safely distanced queue outside).

Below is a rundown of current state accommodations for cannabis in jurisdictions where certain “non-essential” businesses have been effected.

  • In areas that have issued shelter-in-place orders, medical dispensaries have been considered an essential service, allowing them to remain open. This includes Pennsylvania and San Francisco County.
  • California’s Bureau of Cannabis Control is reportedly allowing curb-side pickup.
  • Michigan is allowing adult-use retailers to make home deliveries and is allowing customers to arrange curb-side pickups where customers can remain in their cars.
  • Florida is reportedly allowing medical marijuana patients to obtain recertifications for medical marijuana form their physicians via telemedicine rather than in person.
  • Illinois is allowing curb-side pickup for medical patients.
  • Retailers remain open in Washington – which has been the hardest hit by COVID-19 – and the Liquor and Cannabis Board is in the process developing guidance on curb-side pickups.
  • Cannabis retailers throughout the U.S. are voluntarily restricting operations. Some have stopped adult-use sales entirely in order to prevent over-crowding for medical cannabis patients. Retailers are also requiring call-ahead ordering and shifting to delivery to the extent that are permitted by regulators.

In Massachusetts, Governor Baker has issued an emergency order prohibiting gatherings of 25 people or more. Department of Public Health guidance clarifies that the order does not apply to “retailers,” “pharmacies,” or “medical facilities,” so dispensaries are allowed to remain open. The Cannabis Control Commission has also issued guidance for licensees. The guidance urges companies to establish procedures regarding “lines and queues, the utilization of mobile or order-ahead features that may reduce the risk of exposure, considering appointment-only operations, and the increased frequency of cleaning and sterilization efforts.” The guidance also encourages medical cannabis facilities with delivery operations to “consider the promotion and geographic expansion of their service and remind patients of the ability to acquire up to a 60-day supply.”

The COVID-19 outbreak presents a rapidly evolving situation in which the rules governing cannabis companies may constantly change.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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