On Nov. 8, 2016, Massachusetts voters legalized marijuana, closing a door on more than a century of prohibition and opening one to an uncertain new era.
In doing so, they brushed past gloomy prophecies from opponents — a spike in youth consumption, a rash of stoned driving accidents, ultra-conspicuous pot shops next to toy stores — and heeded arguments from legalization advocates that a tightly regulated cannabis market would be safer, fairer, and more lucrative for government coffers than the sprawling illicit one.
Five years later, that judgment call by voters has in many ways been vindicated. The public health catastrophe foreseen by opponents never materialized. Meanwhile, the recreational marijuana industry today employs over 18,000 Massachusetts workers and has generated $2.2 billion in revenue, with municipalities and the state together netting a healthy 20 percent cut of the action (plus fees).
Still, legalization here is falling short of its potential in several ways, according to interviews with dozens of experts. Since rewriting the voter-approved ballot initiative in 2017, the Legislature has failed to update state laws governing local control and equity so they reflect the reality — and not just the idea — of legal cannabis.
Two areas in particular have drawn the loudest calls for reform: the blurry limits on how much power municipalities have over new marijuana businesses, and the struggles of Black and brown entrepreneurs to win licenses promised them in the law.
As these and other problems fester — including the persistence of a large illicit market — a new batch of states pondering legalization increasingly see Massachusetts as a cautionary tale instead of a model.
“These no-brainer fixes die without a vote year after year,” said Shaleen Title, an attorney who served on the state’s oversight body, the Cannabis Control Commission, and founded a drug policy think tank. “After a while it’s just sad, because you know the public could be getting better results across the board” from legalization.
A single, stark scene from 2019 probably defines, for some, the story of legalization in Massachusetts: then-Fall River Mayor Jasiel F. Correia II shuffling into federal court in shackles, accused of extorting local marijuana applicants for hundreds of thousands of dollars in exchange for city approval.
The kind of overt corruption that netted Correia a federal prison sentence is rare. But US prosecutors and an array of other experts point to it as a symptom of the problematic approval system, in which municipal officials have extensive power to pick which prospective marijuana operators get what’s called a “host community agreement.” With that approval, they can move on to the state licensing process. Without it, they must start over in another town. That make-or-break latitude can give local authorities enormous clout — and, in the case of Correia, corrupt opportunity.
“Implementing the framework governing the new recreational marijuana industry has revealed gaps that the Legislature and commission likely did not anticipate,” Supreme Judicial Court Chief Justice Kimberly Budd wrote in a July ruling on a lawsuit challenging Salem’s licensing process. “Closing those gaps would provide much-needed clarity.”
The system has allowed municipalities to rake in millions of dollars in “community impact fees” from marijuana firms. The payments are called for in host community agreements and come on top of a 3 percent local tax on recreational sales.
State law caps impact fees at 3 percent of a marijuana facility’s revenue and says the money must go toward offsetting costs “reasonably related” to its operation. However, only a handful of cities and towns tailor their fees to a company’s local side-effects, with most simply charging all local operators the maximum 3 percent — and some tacking on further charges beyond that.
An industry-funded review of 460 host community agreements earlier this year by the University of Massachusetts Amherst found the deals together called for at least $2.46 million in excessive fees, a total that doesn’t include millions more spent on police details some consider unnecessary.
“Collecting impact fees on top of the 3 percent [local] tax is indefensible,” said Caroline Pineau, owner of the Stem marijuana store in Haverhill, who is trying in an ongoing lawsuit to force her host city to justify its steep fees. “It’s clear now that we have no impact on public safety, and it’s time cannabis businesses stop being held to a double standard.”
Two localities, Northampton and Lee, have dropped their fees, saying the negligible costs of hosting marijuana businesses don’t merit charging them more than liquor stores or other companies to operate locally.
Municipal attorneys argue all the payments were agreed to voluntarily by marijuana companies and represent good-faith efforts by local leaders to maximize the benefit their constituents receive from businesses whose effect remains uncertain.
While municipal lobbyists have said they’re willing to negotiate clearer limits on fees, they oppose legislation that would give the cannabis commission authority to review host agreements.
“The pending legislation would interfere with over 1,000 existing contracts,” said Geoff Beckwith, the executive director of the Massachusetts Municipal Association. “These bills are not only overreaches, they would create widespread confusion, disruption, and litigation.”
It’s not clear how much sway such considerations hold on Beacon Hill, but so far, lawmakers haven’t sent a reform measure to Governor Charlie Baker: The state Senate did not take up a local control bill passed by the House of Representatives in February 2020.
Asked whether the House would address the issue in the current legislative session, Speaker Ronald Mariano noted that, while the Senate didn’t vote on the previous bill, the House looks “forward to working on host community agreements and other cannabis reforms this session.”
In a statement, Senate president Karen Spilka pushed back on the notion that her chamber has moved too slowly, saying the first stores opened “just three years ago.”
“As with any new law — especially one that legalizes a new industry — there is a need to take a careful look at what is working and what can be improved,” she said.
Spilka said the Senate “will be taking a close look at host community agreements, social equity, and automatic expungement of eligible offenses related to cannabis.”
Those additional priorities should please advocates, who say the state must do more to ensure people from Black and brown communities hit hardest by past marijuana arrests end up with a meaningful slice of the legal marijuana market.
To date, just 16 of the 194 companies that have successfully opened a marijuana facility are owned by participants in the commission’s equity and economic empowerment programs, which provide education and technical assistance.
Those entrepreneurs say their biggest obstacle is accessing sufficient funding, thanks to banking restrictions driven by the federal prohibition on marijuana. Municipal gatekeeping is also an impediment: Unlike the state, cities and towns aren’t obligated to consider equity when awarding pot licenses, and only a small handful do. That means many such applicants never get a shot at cannabis commission review and approval.
Bills that would steer a portion of marijuana tax revenue into a loan fund for equity applicants and require municipalities to at least consider equity have yet to pass. In the meantime, the industry continues to be dominated by operators from the preexisting medical marijuana sector, which had no equity mandate and imposed even higher up-front costs on companies trying to enter it.
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“We have to compete with Goliath, and Goliath got a head start,” said Laury Lucien, an attorney and consultant who has helped guide equity applicants through the licensing process and also co-owns a Worcester marijuana store. “You need an exorbitant amount of money for real estate, construction, attorneys, fees, drawings, engineers, the whole process — and banks aren’t loaning to marijuana businesses.”
Health worries largely unrealized
Leading up to the 2016 vote, opponents emphasized the personal and public health dangers of marijuana.
In 2021, an emerging scientific consensus is putting cannabis in a more balanced context than in the past, tuning out both diehard antidrug warriors who conjure crises out of inconclusive studies and pot enthusiasts who too quickly dismiss the drug’s real harms.
Experts on one hand increasingly see cannabis as a relatively low-risk recreational drug for healthy adults and also as a medicine with potential to treat conditions ranging from epilepsy to anxiety.
On the other hand, substantial evidence links heavy marijuana use to negative cognitive effects in teenagers and young adults whose brains are still developing. It also seems clear, experts said, that a proportion of cannabis consumers overuse the drug and find it hard to stop; as in the alcohol industry, a relatively small number of prolific consumers account for an outsized share of legal cannabis sales.
“With everything we know now, it’s naive to think about cannabis in a one-size-fits-all way,” said Dr. Staci Gruber, a researcher at McLean Hospital whose lab has studied both the long-term risks and potential benefits of cannabis use.
For teens, Gruber added, the old admonishment “just say no” should be updated to “just say not yet.”
Legalization does not appear so far to have markedly boosted pot usage by the young, as some had feared. As of 2019, the most recent year for which state-level data are available from the federal Youth Risk Behavior Survey, the proportion of Massachusetts high-schoolers who used marijuana at least once in the past month had only slightly ticked up since 2017, from 24.1 percent to 26 percent, a statistically insignificant change.
Marijuana legalization timeline
It's been five years since Massachusetts residents voted to legalize marijuana for recreational use. We look back at the winding road that got us here.
The state's first regulated medical dispensary opens in Salem.Read more
Voters approve a ballot initiative establishing a system of regulated marijuana sales and legalizing the possession, consumption, and home cultivation of limited quantities of the drug.Read more
State legislators rewrite the voter-passed law, significantly raising the tax on recreational pot sales and changing how the new industry will be overseen.Read more
Marijuana stores in Leicester and Northampton open for recreational sales, the first to do so on the East Coast.Read more
Fall River Mayor Jasiel F. Correia II is arrested by federal agents for allegedly soliciting bribes from cannabis companies seeking local approval; he is later sentenced to six years in prison.Read more
Regulators pull marijuana vapes from store shelves for several months after an outbreak of mysterious lung illnesses linked to the devices; the cases were eventually tied to a filler ingredient used in some illicit vapes.Read more
The Globe reports that then-US Attorney for Massachusetts Andrew Lelling has convened a grand jury to investigate so-called "host community agreements" between municipalities and marijuana operators.Read more
As the coronavirus pandemic sets in, Governor Charlie Baker orders nonessential businesses to close, including recreational marijuana companies. They reopened six weeks later.Read more
Home delivery of recreational marijuana begins.Read more
While it remains unclear whether the 176 marijuana stores that have now opened for business in Massachusetts are fueling youth consumption, the experience of other states is telling: The US Substance Abuse and Mental Health Services Administration in October published numbers showing teenage marijuana consumption in 2020 declining below 2012 levels, a period in which 15 states legalized the drug. Meanwhile, a September study in an American Medical Association journal concluded the effect of legalization on youth use in 10 states was “statistically indistinguishable from zero.”
Still, critics say too little attention has been paid to rising marijuana use among young adults. And as high school educators complain that marijuana use is becoming more common among their older pupils, some see more ominous trends in youth use rates.
“We ignore these red flags at our own peril,” said former congressman and anti-legalization advocate Patrick J. Kennedy. “It’s time to confront the reality of an addiction-for-profit industry that has been empowered and emboldened.”
Meanwhile on the state’s roads, it’s difficult to tell whether stoned driving is rising, thanks to an overall decline in driving during the pandemic and the lack of a breathalyzer-like device that can reliably detect cannabis impairment.
But Massachusetts State Police statistics released to the Globe don’t reflect any dramatic change since pot stores opened: Of the 8,498 arrests and criminal summonses issued by troopers for operating under the influence from Jan. 2019 through mid-Aug. 2021, 83 percent were for alleged alcohol-impaired driving. Most of the remaining 1,036 citations for alleged drug-impaired driving involved opioids, State Police officials said.
Proponents contend that legal sales to adults 21 and older have advanced not undermined public health: Regulated cannabis companies, they argue, offer uncontaminated products containing known doses of psychoactive THC in childproof packages plastered with health warnings, and are forbidden from making edibles that appeal to youth or imitate popular food brands.
“Instead of using an unregulated product with God knows what in it, my patients are now getting marijuana that’s been tested and tracked from seed to sale,” said Dr. Peter Grinspoon, a Harvard Medical School instructor and cannabis expert. “And since it’s not illegal anymore, they’re much more open with us [physicians] about their [marijuana] use, so we can counsel them about the risks of dependency, drug interactions, bronchitis, and so on.”
Nonetheless, many consumers still prefer the illicit market: In 2020, analytics firm BDSA estimated, a whopping 68 percent of Massachusetts marijuana sales occurred underground. Experts and consumers say that’s mostly attributable to high dispensary prices, caused in part by tight regulations. The legal market is expected to continue gaining ground, however, as competition among licensed businesses increases.
“To be honest, we haven’t cut into the illicit market to the extent I’d hoped,” said Jim Smith, a former state representative whose law and lobbying firm represents numerous cannabis operators. “There’s this whole other invisible multibillion dollar world that’s still out there.”
The pot shop next door
When the first marijuana stores opened in Leicester and Northampton in November 2018, lines of cars from around the region clogged roads in residential neighborhoods.
The problem turned out to be relatively short-lived, however, as more stores opened and absorbed the demand. Today, most municipal officials say the marijuana companies in their communities have been good neighbors.
“It has really been a positive thing for the city,” said Alex Morse, the former mayor of Holyoke, where seven marijuana companies have opened for business and more are in the queue.
That’s thanks in part to marketing regulations that prevent retailers from, among other conspicuous tactics, displaying products in their windows and using marijuana-leaf logos.
Similarly, tight security measures have helped ensure that an isolated robbery attempt and opportunistic looting are among just a small handful of major security incidents known to have hit the industry so far.
And strong municipal control over siting has given local officials power to prevent clusters or strips of pot stores — as envisioned by one dystopian anti-legalization TV ad.
Amid positive reviews from Holyoke and other “early adopter” communities, the number of municipalities with temporary or permanent bans on marijuana companies has fallen from 189 in 2018 to 124.
“From a public safety or annoyance point of view, it’s been virtually silent,” said Arlington’s town manager, Adam Chapdelaine, whose community reversed an earlier moratorium on marijuana stores.
That evolution is still happening too slowly for many. While Spilka’s statement suggests changes to the state’s legalization laws could soon move forward, advocates aren’t holding their breath.
Said Lucien, the lawyer and Worcester pot shop owner: “There’s this lingering stigma around marijuana that gives politicians an excuse to drag their feet.”
Dan Adams can be reached at firstname.lastname@example.org. Follow him on Twitter @Dan_Adams86.