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Shirley Leung

Five ways to fix the bad pot law Mass. just passed

Marijuana growing in a home in Rhode Island for medical use.
Marijuana growing in a home in Rhode Island for medical use. Craig F. Walker/Globe Staff/File

Congratulations Massachusetts, we just passed one of the worst pot bills in the country.

Now what?


Our Beacon Hill leaders should do what they didn’t do in the first place, which is steer this runaway train down the right track. The Yes on 4 campaign successfully tapped into voter sentiment on legalizing recreational marijuana, and the ballot measure passed comfortably with about 54 percent in support. Voters in three other states — Maine, California, and Nevada — also legalized pot by ballot initiative last week.

Here’s the problem, which my colleague Joan Vennochi also warned about: This is a law written by the marijuana industry, and it’s got their best interests, not ours, in mind.


Lawmakers now have the ability to go back and make amendments without undoing the will of the people. Proponents will tell you the Legislature had its shot to craft marijuana legislation and now it’s up to a new Cannabis Control Commission to come up with regulations.

Jim Borghesani, the spokesman for the Yes on 4 campaign, sums up the group’s position this way: “The Legislature would be wise to wait and see what legislative actions are identified by and requested by the CCC in due course of their deliberations rather than leaping to action before the CCC is even appointed, much less started on their tasks.”

But why wait? This law, says Kevin Hill, a McLean Hospital doctor and author of “Marijuana: The Unbiased Truth about the World’s Most Popular Weed,” should be treated like a living document.

“We should expect to have excellent marijuana policy,” said Dr. Hill, who specializes in substance abuse issues. “We have the brainpower in the Commonwealth to give people what they want while limiting risk.”

So here are five ways to fix the law we just passed:


1. Local control — opt in

In Colorado, the first state in the country to legalize marijuana, individual communities could vote on whether to allow retail marijuana businesses in their backyard. Seventy percent of towns voted to ban weed shops, while 30 percent, including the city of Denver, opted in.

The Massachusetts law automatically allows pot shops, which are expected to start opening in 2018, in every town. Communities must now vote by referendum to keep marijuana shops out, and some mayors are already gearing up to do that.

It’s local control, but not the kind we are used to. Even our medical marijuana law was more empowering, requiring a letter of support or of non-opposition from a town leader or governing body.

The Legislature should rewrite the recreational marijuana law to mirror Colorado’s opt-in concept. It’s also what we do with casinos in Massachusetts and allow each community to vote on whether to legalize gambling in their backyard. Boston Mayor Marty Walsh, who campaigned against Question 4, worries the pot law as written doesn’t do enough to protect neighborhoods.

“My concern is that people in Boston voted to support it by a pretty big margin,” Walsh told me, but “now when it comes to siting these pot shops, they are not going to want it in their neighborhood.”

2. Ban home-grown plants

The Massachusetts law allows each individual to grow up to six marijuana plants at home for personal use. Colorado also allows for home growing, but Washington state, which also legalized marijuana, does not.


Massachusetts Treasurer Deb Goldberg, whose office will regulate marijuana, is urging lawmakers to get rid of the home-grow provision because it could hurt the retail market and it’s difficult to enforce.

Here’s another reason: organized crime. In a recent “60 Minutes” segment on the impact of legalized marijuana in Colorado, the sheriff of Pueblo County detailed how criminals are moving into the state and setting up sophisticated operations known as “illegal homegrows.”

In the last six months, law enforcement in Pueblo recorded 36 busts, up from one or two a year prior to marijuana legalization. The groups are taking advantage of the home-grow rule and then selling the marijuana illegally out of state.

“No this is not a Mom and Pop — ‘let’s grow a little weed.’ This is organized crime,” Sheriff Kirk Taylor told the show. “Who’s behind the illegal grows? Different groups of folks. Cuban nationals from Florida. We’ve busted Russians from New York. The pattern that they’ve shown here in the last six months is they’ll come in and buy a home or rent a home or a series of homes. And they’ll set up grows in those homes whether it be in the garages, in the out-buildings, very sophisticated.”

3. Double the tax rate

Proponents of Question 4 kept the tax on marijuana on the low side — up to 12 percent — to discourage the black market. Sales are subject to an excise tax of 3.75 percent, plus the general sales tax of 6.25 percent. Cities and towns can apply an additional sales tax of 2 percent.


But our rate seems out of whack with Colorado and Washington, where effective tax rates range from 25 percent to 44 percent.

I’ve called for a higher tax rate to ensure that we can cover the cost of regulating this new industry — from inspectors to additional law enforcement.

State Senator Jason Lewis, who chaired the Special Senate Committee on Marijuana, has described the ballot measure as a “bad deal for taxpayers” and doesn’t think as written the tax revenues will cover what could be tens of millions of dollars in expenses to regulate weed.

Dr. Hill, the McLean doctor who is an expert on marijuana policy, believes an effective rate of 25 percent feels right. “That makes sense,” said Hill. “You are in the range of other states.”

Borghesani, of the Yes on 4 campaign, wants to leave the issue of the higher tax rate to the Cannabis Control Commission. “If the regulators say we think the tax rate has to go up, it would be fine with us,” he said.

4. Restructure the commission

One of the marijuana industry’s mantras has been to regulate marijuana like alcohol. That’s why the new law puts the state treasurer, who oversees the Alcoholic Beverages Control Commission, in charge of the new three-member Cannabis Control Commission. The treasurer make all three appointments.

The better model is the Gaming Commission. To reduce the potential for undue influence on one office, the Legislature should create a commission with one appointment each from the treasurer, the governor, and the attorney general.


Lawmakers should also consider increasing the size of the commission to five members to reflect the complex nature of managing marijuana. You’ll likely need to draw expertise from the following fields: marijuana industry, public health, law enforcement, agriculture, and policy.

5. Invest in data and set up a public health trust fund

Even though Colorado is two years into legalizing recreational marijuana, it still feels like one big experiment. Some data points show no impact on youth marijuana usage; others show a spike. Initially, state officials found that marijuana-related traffic incidents declined after legalization, but now there’s an uptick.

Massachusetts lawmakers should invest in collecting baseline data to fully understand the social, economic, public health, and public safety impacts of marijuana legalization. The data can be used to help mitigate problems such as addiction and drug driving.

I once again point to our gaming statute, which set up a public health trust funded by casino tax revenue. When all the casinos are open, about $15 million to $20 million a year will be set aside to fund research and remediation to offset the negative impact of legalized gambling. A similar trust fund should be set up for marijuana.

Shirley Leung is a Globe columnist. She can be reached at shirley.leung@globe.com. Follow her on Twitter @leung.