Pot law fallout stacking up in Legislature
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Chairman Steven Hoffman calls a vote at the Cannabis Control Commission.
It was voters, not elected politicians or policymakers, who brought marijuana to the mainstream of Massachusetts society.
With a few exceptions, Gov. Charlie Baker and the Legislature have taken a laissez-faire approach to the newly legal industry since rewriting the legalization law put in place by voters almost three years ago, opting instead to leave it to appointed state regulators to shape the fine contours of a complicated new world.
Last week, though, government took perhaps its most intrusive step into the marijuana world yet when Baker's public health arm unilaterally banned the sale of all vaping products amid a national outbreak of unexplained lung illnesses, sending patients who vape their medicine scrambling for alternatives and taking a product that accounts for almost a fifth of all legal sales off the shelves for four months.
State government's hands-off approach comes with benefits for the Cannabis Control Commission, which has settled into a rhythm of approving new business licenses while simultaneously expanding the industry to include things like home delivery and social use without legislative intrusion. But the relative freedom also has its downsides, like when the CCC's most pressing request was met with the equivalent of blank stares from the state's leaders earlier this month.
Lawmakers Just Say No
Unlike the 2008 decriminalization push and the 2012 campaign for medical marijuana, the 2016 legalization effort drew high-profile, powerful and organized opposition. Almost every elected public official opposed legalization and Gov. Charlie Baker, Boston Mayor Martin Walsh, House Speaker Robert DeLeo and Attorney General Maura Healey actively campaigned against it.
For each of those three initiatives to make it to the ballot, the Legislature first had to turn down an opportunity to act on the issue on its own. But once the legalization question passed, with 54 percent of voters in support, the same Legislature that declined to legalize marijuana on its own terms tasked itself with rewriting and amending the voters' law.
First, the bulk of the ballot law was delayed by six months -- enacted by lawmakers meeting in a usually-sleepy informal session in the days between Christmas and New Year's -- and then each branch took a crack at drafting its own version of the law. The rewrites then got bogged down in a conference committee, so much so that DeLeo had to ask negotiators to freeze their talks so the Legislature could focus on finishing a past-due budget.
"I don't support this. I worry terribly about what the consequences over time will be," Baker said after signing the rewritten law into effect at the end of July 2017. "The people voted this, and I think it's really important that we put the program in place and deliver a workable, safe, productive recreational marijuana market for them in Massachusetts."
In the last two-plus years, Baker has lived up to those words. No one would confuse him for a supporter of the marijuana industry, but he has largely stood aside as the CCC has rolled out the industry and laid down the rules for it.
The CCC acquiesced to the Baker administration pushback against its plan to allow home delivery and social consumption in its initial set of regulations in favor of keeping it simple out of the gate. And while the CCC has put rules for delivery and social consumption in place over the last few months, Baker kept a low profile and did not publicly criticize the CCC's new regulations.
Meanwhile, the Legislature more or less hit the pause button on marijuana issues after putting the rewritten law in place, continuing its pattern of shying away from marijuana policy debates. Aside from the ballot question rewrite, only one bill that has come out of the Cannabis Policy Committee has gotten a vote in either branch -- H 3535 expanding agriculture preservation restrictions for hemp cultivation. The House passed that legislation unanimously in June and the Senate has not taken it up.
Requests from Regulators
There are plenty of marijuana-related bills pending before the Legislature though, including one that the CCC has specifically asked state lawmakers to give some attention to.
The statutory requirement for marijuana companies to enter into a host community agreement before the CCC will consider an application has been one of the thorniest issues for marijuana regulators and -- after months of public debate and a back-and-forth with the former chairs of the Cannabis Policy Committee -- the CCC voted in January to formally request that the Legislature grant it "statutory authority to review and regulate" host community agreements.
Nine months later, Baker, DeLeo and Senate President Karen Spilka seemed wholly unaware of the CCC's ask.
"If there is something here that the commission, which is obviously worrying about this day in and day out, has concerns about, that or other pieces of it, then at some point I would advise them to make the Legislature and us aware of those things," Baker said in early September.
When asked about the CCC's specific request from January related to HCAs, DeLeo said, "there is nothing really before us to consider" and said lawmakers "haven't seen any legislation at this point that has been filed," despite the Cannabis Policy Committee having held a public committee hearing on HCA-related bills six weeks earlier.
Spilka said she and the Senate would look at the issue "if there is some legislation that's filed and there's some discussion and some needs that are shown."
Several other bills, including one (H 71) the governor filed in January, would address one of the most frequent arguments against legalization -- operating under the influence.
"Our administration views these improvements as the next deliberative step for the Commonwealth and the Cannabis Control Commission to continue implementing the legalization of recreational marijuana safely and responsibly and we look forward to working with our colleagues in the Legislature to pass this bill into law," Baker said in January.
Last year, a Department of Public Health study found that nearly 35 percent of adults who reported using marijuana in the previous 30 days also reported driving under the influence of marijuana.
Still, the Legislature has not touched Baker's bill addressing detection of impaired drivers, the interaction between police officers and drivers who are thought to be impaired, and how cases involving suspected impaired drivers are handled in the state's courts. The bill has been pending before the Joint Committee on the Judiciary since January.
The Legislature's decision to give Baker's OUI bill a wide berth is not holding up the state's marijuana industry. But if the Legislature chooses not to act on other legislation (S 1125), a CCC-approved pilot program to test out social consumption establishments might not get off the ground.
The CCC has laid out the framework of a pilot program to include 12 municipalities, but the agency said the pilot "would not be able to begin without a change in state law or the passage of legislation that will first allow cities and towns to authorize social consumption in their communities."
As it waits for the Legislature to respond to its request for enforcement of HCAs, address the dangers of impaired driving and to greenlight a social consumption pilot, the CCC is not easing up on shaping the cannabis industry in Massachusetts.
As commissioners prepared to vote last week on the CCC's latest iteration of medical and non-medical marijuana rules, they also looked ahead to the spring -- when the CCC plans to embark on a third round of regulatory reform.
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