Massachusetts Recreational Cannabis Reopens with Limitations

Arent Fox
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Massachusetts retail recreational cannabis establishments reopened on May 25, 2020, for curbside delivery after Governor Charles Baker ordered a phased reopening of state businesses.
 
Recreational cannabis operators shut down on March 24, 2020, in compliance with Governor Baker’s Emergency Order of March 23, 2020, that required all Massachusetts “non-essential” services to cease doing business because of the Covid-19 pandemic. Medical cannabis treatment centers remained open as an essential service.
 
The Reopening Order. On May 18, 2020, Governor Baker issued an Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19 (Reopening Order). The phased reopening will, over time, allow the state’s non-essential businesses to resume operations. Phase 1 (of four phases) began May 18th for certain categories of businesses listed in the Reopening Order. Retail stores, including retail recreational cannabis, were not included in Phase 1. However, the Reopening Order separately authorized all retailers to initiate curbside delivery of their products beginning May 25, 2020.
 
The Massachusetts Cannabis Control Commission (Commission) Orders. The Commission implemented the Reopening Order in part by releasing a Final Cease and Desist Order on May 18, 2020. Effective May 18, 2020, all recreational cannabis license categories except retail establishments were permitted to resume operations. The Final Cease and Desist Order will remain in effect until rescinded by the Commission. A copy of the Final Cease and Desist Order can be found here.
 
The Final Cease and Desist Order did not address the limited reopening of retail recreational cannabis establishments for curbside delivery. To fill that gap, the Commission issued Amended Administrative Order No. 1 (Amended Order) on May 20, 2020. The original Administrative Order No. 1, dated March 27, 2020, permitted temporary “curbside operations” by medical cannabis operators. The Amended Order added temporary authorization for curbside operations by retail recreational cannabis licensees effective as of May 25, 2020.
 
Retail Cannabis Curbside Operation. The heart of the Amended Order is a revised protocol for retail curbside operations by licensed medical and recreational cannabis operators (Licensee or Licensees). Key requirements of the Amended Order are as follows:
  • Curbside delivery orders must be placed in advance by phone and/or electronic means by a consumer for recreational cannabis or by a person authorized under the Commission’s regulations to purchase medical cannabis. Licensees must respect applicable privacy requirements when taking curbside delivery orders.
  • Electronic payments are acceptable as are pre-sale payment arrangements made by phone. Cash payments must be made in a limited access entrance to the licensed premises in the exact amount due for payment.
  • The cannabis products must be delivered outdoors on the Licensee’s premises by a Registered Agent of the Licensee to a vehicle in the Licensee’s parking lot or to an individual in a limited access entrance to the licensed premises. Delivery on public sidewalks or adjacent parking lots is not allowed.
  • The Licensee must confirm the identity, the age, and, in the case of medical cannabis purchases, the legal authority of the individual or individuals accepting the curbside delivery.
  • A Licensee must make and store video recordings of all curbside deliveries using its existing external security video system in a manner that allows for the identification of individuals entering or exiting the Licensee’s premises.
  • Licensees must notify the Commission and their local municipalities before commencing curbside deliveries and must comply with their community host agreements and other local rules when setting up a curbside delivery program.
  • A Licensee must, within forty-eight hours of commencing curbside operations, deliver to the Commission a copy of its standard operating procedures and a facility layout indicating changes the Licensee made to its premises to accommodate curbside operations.

The Amended Order will continue in effect until the Governor’s Emergency Order is amended or rescinded, or until the Commission amends or rescinds the Amended Order. A copy of the Amended Order can be found here.

The Takeaway. Retail recreational cannabis operators have been given a lifeline, but timing for resumption of in-store sales is uncertain. The earliest date for in-store sales is June 8, 2020 when Phase 2 of the Governor’s reopening plan is scheduled to begin. However, that date may be pushed back if the state fails to hit certain public health benchmarks.

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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