State law, local policies can address recreational marijuana consumption

The state’s smoke-free workplace law and several common municipal second-hand smoke policies will help shape how and where legalized marijuana can be used.
 
While the Cannabis Control Commission has delayed any “social consumption” establishments from opening until at least February 2019, cities and towns can use existing approaches to address how those establishments would operate, if at all, in their communities.
 
The Massachusetts Smoke-Free Workplace Law (Chapter 270, Section 22) prohibits smoking in workplaces. The law defines smoking as anything that can be “combusted and inhaled,” including marijuana. The state law has several exemptions, but it is anti-preemptive, which means cities and towns may further condition or eliminate those exemptions.
 
The smoke-free law does not address vaping or edibles, but 132 cities and towns have enacted a policy that prohibits vaporization or aerosolization of any substance, with or without nicotine, in any location that is smoke-free under state law or by local regulation.
 
A 2006 Supreme Judicial Court ruling clarifies that cities and towns may enact a ban on smoking in private clubs. Since that decision, 70 cities and towns have enacted such a ban, relying on the state law’s “smoking” definition, and a vaping ban policy as described above would include private clubs.
 
Cigar bars or hookah bars hold a state smoking bar license that exempts them from the smoke-free law. That license requires a majority of the business’s revenue to come from the sale of tobacco. This exemption to the smoke-free workplace law is not available to nonprofit organizations such as a private club.
 
If the smoking bar exemption is changed to permit marijuana as well, cities and towns may opt to ban smoking in “smoking bars,” as 119 have to date. A local vaping use ban would also prohibit marijuana vaping in such businesses.
 
Smoking bars and retail tobacco stores must be “adult-only” businesses to qualify for exemptions to the smoke-free workplace law. State law sets a minimum legal sales age of 18, while 167 cities and towns have adopted a higher minimum age of 21, which would also apply to smoking bars and retail stores in their community. The state law does not address retailers that focus solely on the sale of vaping products.
 
A qualifying retail tobacco store may permit smoking in its store, but in order to qualify, the sale of non-tobacco products must be “incidental,” according to state law. Some are concerned that a change in state law could allow qualifying tobacconist/smoke shops to allow both tobacco and marijuana smoking in their adult-only establishments. So far, 74 cities and towns have banned smoking in retail tobacco stores, and such bans would extend to marijuana smoking. A municipal vaping ban would extend to marijuana vaping in those stores as well.
 
Smoke-free buffer zones are not addressed in the smoke-free workplace law, but dozens of municipalities ban smoking within a certain proximity to municipal building entrances, ranging from 15 to 50 feet, which would also apply to marijuana smoking. A local vaping ban would also apply to buffer zones.
 
The smoke-free workplace law is limited to enclosed workplaces. To address smoking on restaurant or bar patios, porches and decks, 77 cities and towns have enacted policies that either limit or ban smoking in such locations, which would extend to marijuana smoking. A local vaping ban would also apply.
 
Thirty-six municipalities, including Boston, prohibit smoking in hotel, motel, inn and bed and breakfast guest rooms. This ban would extend to marijuana smoking, and to vaping if the municipality has also adopted a vaping ban policy.
 
The smoke-free workplace law does not address smoking outdoors. A variety of municipal policies ban smoking in locations such as municipal parks, beaches, playgrounds, tot lots, non-school athletic fields, cemeteries, and town commons. Such bans would extend to marijuana smoking, and a local vaping ban would also apply.
 
For more information, contact D.J. Wilson at the MMA at djwilson@mma.org or 617-426-7272, ext. 152.