The Massachusetts Cannabis Control Commission is considering whether an untested federal regulation could provide a legal basis for moving marijuana between the mainland and the islands of Martha’s Vineyard and Nantucket.
Just as in the rest of the state, marijuana is legal on the two islands. But they are surrounded by airspace and waters subject to federal law, under which the drug is strictly illegal. Pilots who knowingly fly with the drug risk losing their licenses.
That presents a major headache for customers and potential cannabis business owners on the islands. Without a workaround, dispensaries there won’t be able to order marijuana from suppliers elsewhere in Massachusetts, and growers and processors on the islands would not be able to send their products for required lab-testing on the mainland.
Now, Massachusetts officials are eyeing a possible answer: A little-known Federal Aviation Administration rule enacted in 1972.
The regulation bans pilots from knowingly operating aircraft carrying illegal substances. But it also says the prohibition “does not apply to any carriage of narcotic drugs, marihuana [sic], and depressant or stimulant drugs or substances authorized by or under any Federal or State statute or by any Federal or State agency.”
Steve Hoffman, chairman of the state Cannabis Control Commission, said a plain reading of the regulation would allow flying marijuana to the islands from mainland Massachusetts. His agency is evaluating the FAA rule, with an eye to drafting procedures to allow planes to do just that.
The agency learned of the obscure rule after marijuana activist Tom Angell wrote about it earlier in October.
Marijuana attorneys and dispensary owners were cautiously optimistic the rule could provide a solution to the long-simmering “island problem.”
“It allows you to sell on the island but cultivate on the mainland, where you don’t have to burn water and electricity at inflated island rates,” said Valerio Romano, a marijuana attorney who represents a company trying to open a dispensary on Nantucket.
However, Romano and Geoff Rose, who heads a group trying to open a medical dispensary on Martha’s Vineyard that plans to grow its marijuana on-island, both said it would probably be cost-prohibitive to fly marijuana samples to the mainland for lab testing—especially if they have to charter a plane. Currently, no commercial airlines allow marijuana on board.
“If safe, legal, and compliant, we will carry it,” said Dan Wolf, chief executive of Cape Air, the main airline servicing the islands. “Right now, [marijuana] is neither legal or compliant.”
In Alaska, where recreational marijuana is legal, licensed cannabis companies often ship it on commercial flights, according to published accounts. They tell state law enforcement agencies of their plans but intentionally keep airlines in the dark to avoid triggering the rule that bans pilots from knowingly carrying the drug.
Given the number of states that have legalized marijuana in some form, an FAA spokeswoman said, the agency is reviewing its rules “to provide a basis for FAA enforcement guidance on this subject.”
But Christopher Poreda, a former top lawyer for the FAA in New England who retired in 2015, doesn’t believe the regulation allows the cannabis commission to authorize private flights carrying marijuana. Its wording, he argued, hinges not on whether marijuana is legal under state law but on whether the carriage of the drug by air is legal under state law. That means Massachusetts would have to pass a new law, not a cannabis commission regulation, explicitly permitting such flights. Similarly, Poreda thinks the FAA regulation’s other clause only authorizes state agencies themselves to fly the drug, not pilots who have the permission of a state agency.
“I’m not sure the enthusiasm for this is founded,” Poreda said. “My sense of the agency is that they’ll do everything in their power to prevent this regulation from being used as a sword to promote the use of marijuana.”
No one is saying the rule authorizes pilots to fly marijuna into or outside Massachusetts. Under Obama-era federal policies, states where marijuana is legal must prevent the drug from crossing into other states, even if marijuana is legal there, too.
The so-called island problem was raised during the Legislature’s rewriting of the voter-approved recreational marijuana ballot measure earlier this year, but lawmakers directed the cannabis commission to find a solution.
Rose is hoping the cannabis commission will allow the Steamship Authority to permit marijuana on its ferries. The authority technically doesn’t allow the drug on its ships, but Rose said medical marijuana patients frequently sail to the Vineyard with small amounts of the drug and don’t encounter problems.
“I’m glad to hear that the [cannabis commission] is actually doing some thinking about this,” Rose said, “but the cheapest and most practical solution is to put it on the steamship authority. If you can carry an ounce of cannabis on your person without fear of prosecution, why can’t I bring a sample for testing?”
Romano, however, said the commission shouldn’t adopt a “look the other way” policy when it comes to bringing pot on federally regulated ships.
“None of my clients would rely on essentially smuggling cannabis to their dispensaries via a ferry as a real solution,” he said. “There is too much oversight and regulation of this industry to rely on that sort of workaround.”
The steamship authority did not return a call seeking comment. The Coast Guard, a federal agency, has said repeatedly that it will enforce the federal prohibition. But in Washington state, licensed firms use ferries to move marijuana between islands and the mainland without problems, a spokesman for that state’s cannabis agency said.