State and local officials prepare for new marijuana law

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In the aftermath of Question 4’s victory in the November election, state and local leaders have begun considering their next steps as the implementation process begins for the new recreational marijuana law.
 
Some legislators initially signaled that they might consider delaying some provisions of the law during the just-ended informal session, but ultimately decided not to do so. As a result, on Dec. 15 it became legal for Massachusetts residents age 21 or older to possess, grow, use and “gift” certain amounts of marijuana.
 
Individuals may possess up to one ounce of marijuana outside of their residence and up to 10 ounces at home. Individuals may also grow up to six plants per person, or 12 per household, but cannot advertise or promote the sale of their homegrown marijuana. Municipalities do not have authority to set limits on the “home growth” provisions.
 
The sale of marijuana does not become legal until Jan. 1, 2018, which is also the deadline for state regulations. The law also permits edible marijuana products (food and drink infused with THC).
 
The recreational marijuana law does allow for municipalities to adopt ordinances or bylaws that regulate the “time, place, and manner of operations” of marijuana facilities, so long as such bylaws or ordinances are not “unreasonably impracticable.”
 
Local governments seeking to limit the number of marijuana dispensaries to less than 20 percent of the number of liquor licenses issued for the municipality will need to have that limit or ban approved by “a vote of the voters,” construed by many experts to be a referendum at the next available election.
 
Many local governments are pursuing a moratorium similar to those enacted in response to the 2012 medical marijuana law. Medical marijuana moratoriums were often approved for a period of one year, so long as they were intended to give local governments time to study the issue and relevant state laws.
 
So far, nearly 20 communities have either enacted a moratorium or begun the process, seeking to take action in time either for their spring town meetings or their municipal election.
 
Municipalities also possess some zoning powers to regulate new recreational establishments, but they cannot prevent a recreational facility from operating in any area in which a medical marijuana treatment center is registered.
 
The new law does not require that public employers change any guidelines restricting marijuana use on the job. Municipal governments may continue to prohibit employees from using or possessing the drug while on the job or on municipal property, and from working under the influence. Federal laws regarding marijuana use and employees authorized to hold or use firearms, such as local police, remain in effect, regardless of changes to state law.
 
Regulation and implementation
To regulate the recreational marijuana industry and to promulgate regulations, the new law creates a three-member Cannabis Control Commission, modeled after the Alcoholic Beverages Control Commission, and a 15-member Cannabis Advisory Board. The statute sets out requirements for membership on the CAB and calls for a permanent majority of the board to be industry representatives. The state treasurer is charged with appointing the members of the CCC.
 
Attention now turns to the appointments of the CCC and the process of promulgating regulations, which are certain to have a major impact on the execution of the law.
 
Following the election, the MMA sent a letter to state leaders urging them to make changes to the law to ensure that it is workable and can be implemented successfully. There is precedent for the Legislature making adjustments to a ballot initiative, as lawmakers did in 1981 after the passage of Proposition 2½.
 
The MMA encouraged legislators to enhance the level of revenue to be collected under the new law, in order to ensure that the revenue is at least sufficient to cover the costs of regulation. The MMA also proposed that additional state revenue be used in part to fund police training programs administrated by the Municipal Police Training Committee.
 
The Massachusetts law establishes a 6.25 percent sales tax, a 3.75 percent excise tax, and an optional 2 percent local tax. For reference, Colorado has a 2.9 percent sales tax, a 10 percent retail marijuana special sales tax, and a 15 percent special excise tax.
 
The MMA is strongly advocating for greater local control, suggesting a municipal opt-in system rather than the current opt-out. Should the Legislature prefer to retain the opt-out system, the MMA is asking that municipal officials obtain the ability to do so through local bylaw or ordinance, rather than the cumbersome and onerous referendum process.
 
The MMA’s letter to state leaders suggested changes to the CCC and CAB, especially the addition of a municipal representative to the CAB and greater public safety representation. (Click here to read the MMA letter.)
 
House Speaker Robert DeLeo has said that he “will not hesitate from day one to make changes” to the new law, suggesting that the Legislature may take action early in the session that begins in January. Such changes may include increasing the law’s revenue provisions.
 
Senate President Stanley Rosenberg, who supported the ballot question, has suggested a similar willingness to make adjustments to the law.
 
In the short term, state leaders must identify a source of funding for regulatory startup costs, as state and local officials are required to begin the process of regulating the commercial marijuana industry before it generates any revenue.