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Ban on medical marijuana vapes to end unless cannabis commission votes to keep it, judge rules

A technician made Curaleaf vape products for medical marijuana patients in Ravena, N.Y. Hans Pennink/Associated Press/FR58980 AP via AP

Governor Charlie Baker’s ban on medical marijuana vaping products will end next week unless the state Cannabis Control Commission votes to keep it in place, a state judge ruled Tuesday.

The ruling does not apply to the ban on nicotine or recreational marijuana vapes.

State lawmakers clearly wanted the cannabis commission to oversee the medical marijuana industry and prioritize access for patients, Suffolk Superior Court Judge Douglas H. Wilkins ruled. He added that the ban on medical cannabis vapes could cause “irreparable harm” to patients who rely on vaping products to treat severe pain and other conditions, and could lead them to use opioids or illicit drugs.


To avoid disrupting the market, Wilkins allowed Baker’s ban on medical marijuana vapes to remain in effect until noon on Nov. 12, giving the cannabis commission until then to decide whether to adopt emergency regulations similar to the ban, in whole or in part, to change them, or to decline to enact a ban at all.

Baker plans to appeal the ruling, a spokesman said, noting that the ruling has no immediate effect.

The ban on both marijuana and nicotine vaping product sales has been in effect since Sept. 24, when Baker announced a public health emergency amid a national outbreak of vaping-related lung illnesses that have killed at least 37 and sickened more than 1,800 people.

Baker said at the time the four-month ban was necessary to give investigators time to pinpoint the cause of the ailments.

Since the announcement, federal officials have said the evidence increasingly points to most of the illnesses being linked to illicit-market marijuana products; however some patients reported vaping only nicotine.

Two women have died in Massachusetts, and health officials said they both vaped only nicotine. Another 217 suspected cases of vaping-related lung injuries have been reported to the state, said Terry MacCormack, a Baker spokesman.


MacCormack said federal investigators have warned that no “single substance or product” has been linked to all the illnesses or deaths, and the authorities have “urged consumers to stop vaping, as medical experts continue to research what is making people sick.”

The judge’s ruling Tuesday was the latest in a lawsuit originally filed by nicotine vaping companies against Baker’s ban.

Wilkins previously ruled that Baker did not follow the correct procedure in implementing the ban without first holding public hearings, analyzing the effect on small businesses, and formally implementing it as a regulation.

The administration appealed that ruling and filed the ban as an emergency regulation, setting a public hearing for Nov. 22.

The judge also allowed four medical marijuana patients to be included in the lawsuit. The Supreme Judicial Court announced this week it would hear arguments related to the ban in December.

In his ruling Tuesday, Wilkins wrote that, based on state laws, Baker’s Department of Public Health “very likely exceeded its authority.”

The Legislature granted the cannabis commission “exclusive powers over medical marijuana,” and defined the Department of Public Health’s role as to “work collaboratively” and in “an advisory role,” Wilkins wrote.

The commission did not immediately comment, saying it was reviewing the ruling. Neither did the Department of Public Health.

One of the patients involved in the lawsuit, cannabis advocate and lawyer Will Luzier, praised the judge’s ruling.


“We believe the judge made the correct decision,” said Luzier, who said he relies on marijuana vaping products to relieve his arthritis and ocular hypertension. “The governor’s administration overstepped their mandate,” he said, adding that the 2016 ballot initiative suggested vaping products should be available for sale, which was “an expression of the will of the people.”

Luzier said recreational marijuana should also fall under the cannabis commission’s purview, though the lawsuit and the judge’s ruling have not addressed access to non-medical marijuana.

In his ruling, Wilkins also noted that lawmakers set up the cannabis commission to be independent from the governor. Lawmakers placed the laws about the commission under the section of state law involving the state treasurer, not the governor, Wilkins wrote, and granted the governor sole appointing authority over just one of the five cannabis commissioners. The rest of the commissioners are appointed through votes that include the treasurer and the attorney general.

The Department of Public Health is “asserting the power to commandeer the [Cannabis Control Commission] to implement DPH’s vision of medical marijuana regulation despite CCC’s exclusive authority over that subject,” he wrote. “That squarely violates [state law].”

Additionally, Wilkins wrote, the Legislature ordered “all” power over medical marijuana to be transferred from the Department of Public Health to the cannabis commission, a change that occurred last December.

“The obvious purpose of the transfer of ‘all’ power over medical marijuana was to change the inputs into decision-making in this area,” Wilkins wrote, so that “medical marijuana regulation would reflect broader representation of affected communities and individuals.”


“The conflict with the legislative scheme could not be clearer,” Wilkins wrote.

Lawmakers directed the cannabis commission to not restrict patient access to medical marijuana, Wilkins wrote, adding that it’s “common sense” that the Legislature would not want the Department of Public Health to force the commission to do so.

Wilkins wrote that the cannabis commission has expertise in marijuana, and may decide, for example, to write different rules for vape pens for concentrated pot oil cartridges and vaporizers for raw marijuana “flower.”

Additives in the oils seem to be causing the illnesses, federal officials have said. No acute lung injuries have been publicly linked to flower vaporizers, but they are also covered under Baker’s ban.

Cannabis industry leaders said they hoped that regulated marijuana vapes would become available again for all consumers, not just medical patients.

“Certainly we wouldn’t allow something for medical patients, who may have compromised immune systems, that wasn’t also safe for the general public,” said David O’Brien, president of the Massachusetts Cannabis Business Association.

Naomi Martin can be reached at naomi.martin@globe.com. Follow her on Twitter at @NaomiMartin.