One of the state's leading proponents for the legalization of marijuana — who now faces possible criminal drug distribution charges for selling a cannabis-based oil — told a clerk magistrate Tuesday that he believed he was selling a legal product known as CBD, recognized across the country for its medical benefits.
"I [believed it] then, and I still do now," a defiant Bill Downing said under questioning during a hearing at Boston Municipal Court in Brighton.
Boston police have sought to charge Downing, 57, with nine counts of distribution of a Class D drug, marijuana, or a Class C drug, THC, out of a store he operated in Allston, called CBD Please. Downing sold a liquid form of CBD by the gram to undercover Boston police officers on several occasions in late 2014 and early 2015.
When Downing testified, he cited the manufacturer's guide for the product he was selling, which reads, "100 percent legal in all 50 states." His lawyers argued that police singled Downing out, even though other companies in Massachusetts have sold the same product.
State chemists who tested the CBD sold by Downing to the undercover officers found traces of THC, the psychoactive element in marijuana, but chemists differed on whether to classify the product as a Class C or a Class D drug.
Clerk Magistrate Stephen Borelli will now decide whether police had probable cause to charge Downing, and whether the case should proceed in court.
During a hearing Tuesday, Lawyers for Downing said Boston police targeted their client for his loud criticism of the state's medical marijuana industry. Downing formerly operated the Reading-based Yankee Care Givers to provide cannabis products to medical marijuana patients, but state officials shut that business down, saying he could not provide the products to more than one patient under medical marijuana laws approved in 2012.
Downing, a member of the board of directors for the Massachusetts Cannabis Reform Coalition, has also helped organize the annual marijuana rally on the Boston Common, and he is the treasurer for Bay State Repeal, one of the groups that pushed to put a marijuana legalization measure on the 2016 ballot.
In December 2014, Downing opened CDB Please to sell non-psychoactive cannabis-based products for medical use. He said in press releases and in published news reports at the time that he wanted to provide as much support for medical marijuana use that is allowed under state law.
Kenneth Conley, a Boston police detective, testified during the hearing Tuesday that his superiors wanted him to investigate Downing after reading about the business in the Boston Globe in December 2014.
Conley said he went to the store in an undercover role, and inquired about CDB oil.
"I told him I wasn't feeling well, lower back pain," Conley said. "I told him I was having trouble sleeping and I didn't like smoking marijuana, and he told me the best thing for me was the oil."
Conley said he paid $40 for the gram of oil. On other occasions, undercover police officers paid $30, or $25.
Conley said a state chemist detected THC when testing the oil. Authorities later seized hundreds of grams of oil and other products, such as hemp shampoo and conditioner, during a raid of Downing's business and home.
Lawyers for Downing argued that the THC levels in the products are so minimal that the products are exempt from the state law that criminalizes products containing more than 2½ percent THC. One of the lawyers, John Swomley, noted that the chemists had to test nearly the entire gram of liquid oil each time to detect any THC.
Another lawyer, Stephen Epstein, said the CDB Downing sold came from Colorado, and it would not be classified as a controlled substance under US law.
"It's speculation . . . to believe there was any useable amount of [THC] in anything that tested positive for THC," he said. Downing "was undertaking a lawful business. What he was doing was perfectly legal, and no crime was committed."
Borelli invited the lawyers to submit further legal arguments in writing, and said he could issue a decision next week.