Mass. medical marijuana patients say Baker lacks authority to ban cannabis vapes

Tony Dejak/Associated Press/Associated Press

Massachusetts health officials have no legal authority to ban the sale of regulated marijuana vapes, a group of medical marijuana patients argued in a legal filing this week.

Governor Charlie Baker announced an emergency statewide ban on the sale of all vaping products Sept. 24, contending the broad policy was needed to protect public health amid an outbreak of vaping-related lung illnesses that federal authorities now say have sickened nearly 2,000 Americans and killed at least 37, including two in Massachusetts.

But the medical marijuana patients — who are challenging the ban in court along with a group of nicotine companies and vape shops — say they’re suffering after losing access to the quick symptom relief provided by vapes sold at licensed marijuana stores and dispensaries. They point to advisories from the US Centers for Disease Control saying additives in illicit marijuana vapes are the most likely cause of the lung illnesses and argue that regulated vapes are safer because they are lab-tested and list their ingredients.

In the new filing Thursday, the patients said that the Legislature in 2017 explicitly reassigned nearly all authority over recreational and medical marijuana products to the independent Cannabis Control Commission, removing oversight of the medical cannabis program from the state Department of Public Health. Baker’s sweeping vape ban, implemented by the Department of Public Health under decades-old health emergency laws, unlawfully overrides that authority, the patients argued.

“With the stroke of its pen, DPH purports to abrogate the legislative mandate that marijuana vaping oils be legal and regulated by the [commission],” the group wrote in its filing. “This it cannot do.”

A spokesman for Baker would not comment on the specifics of the filing, saying only that the cause of the lung illnesses remains unclear and that the ban remains in effect following recent court decisions.

Suffolk Superior Court Judge Douglas Wilkins last week raised constitutional concerns about the ban, ruling Baker erred by imposing the rule immediately and unilaterally instead of implementing it as a formal emergency regulation, which would have required a public hearing and other checks on executive authority. However, Wilkins has allowed the ban to stand while Baker begins the emergency regulation process.

The patients — including Will Luzier, a leader of the 2016 marijuana legalization campaign in Massachusetts — argued that state law grants the commission the exclusive power to regulate the safety of marijuana vapes, including requirements around inventory tracking, lab testing, and product recalls. The Department of Public Health, meanwhile, is assigned only a handful of secondary and advisory functions in the law. They noted that the commission recently tightened its regulations around the disclosure of ingredients in regulated marijuana vapes.

The emergency regulations keeping the ban in place “usurp that clear legislative authority from the CCC by enacting a blanket ban that purports to trump the regulation the CCC has just adopted and strips the CCC of promulgating any further regulations regulating vaporizing of marijuana,” the group wrote. “An administrative agency cannot abrogate and nullify a legislative mandate.”