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Cannabis board declines to uphold Baker’s medical marijuana vape ban, but products may stay off shelves

Tony Dejak/Associated Press/Associated Press

The state Cannabis Control Commission on Thursday declined to uphold Governor Charlie Baker’s ban on sales of medical marijuana vaping products, but a top official said the products could remain off store shelves.

A judge ruled earlier this week that the medical marijuana vape ban would end at noon Tuesday unless the commission voted to keep it.

At a packed meeting Thursday, the commission declined to vote on the ban. But Shawn Collins, the commission’s executive director, said he was “leaning toward” a quarantine of marijuana oil vaping cartridges if the ban is lifted because of concerns about the products’ safety and quality. He would need evidence to support a quarantine, which would bar the products from being sold.


Collins said he might allow sales of vaporizers for raw cannabis flower because those have not been publicly linked to any illnesses.

He said he would wait to make his decision because of a pending appeal by the Baker administration of the judge’s ruling, and a federal investigation into the cause of the nationwide outbreak of vaping-related lung illnesses.

“At this point, vaporized flower does not appear to be implicated [as a culprit] by any of the national discussions,” Collins said. “It would be a surgical, narrow approach, but one I think we would be well within our existing authority to consider and be justified in doing so.”

Commission chairman Steven Hoffman said he hoped the commission would act in some way before noon Tuesday. The judge’s order was focused on medical marijuana; it did not affect Baker’s four-month ban on recreational marijuana or nicotine vapes.

The five cannabis commissioners voted to affirm Collins’s authority to act alone at any time on the matter, and passed a measure saying they intended to eventually regulate the ingredients, testing, hardware, manufacturing, and other issues around vaping products based on evidence, including public comments.


As part of gathering that evidence, the commission will formally request information from the Department of Public Health on whether any illnesses in Massachusetts were linked to regulated marijuana vapes.

Hoffman, the chairman, urged his fellow commissioners to commit to a timeline for beginning the regulatory process.

“We would be shirking our responsibility to leave it open-ended, to leave it at, ‘Some point in the future, unspecified, we’re going to talk about a regulatory process,’ ” Hoffman said. “People’s lives are at stake here.”

But other commissioners said they needed more information before committing to a timetable.

“I go to sleep thinking about this. I wake up thinking about this,” Commissioner Jen Flanagan said. “We’ve got to take the time to get it right in the first place. The data is what we need.”

After the meeting, two patients who were involved in the lawsuit that challenged Baker’s ban said they were disappointed.

“It’s unfortunate that patients will not have access to their medicine on Tuesday at 12:01 [p.m.],” said patient Will Luzier, a cannabis advocate. “I appreciate chairman Hoffman’s sense of urgency around this, and I certainly wish the rest of the commissioners shared that.”

Frank Shaw, another patient, said flower vapes don’t work as well as oil vapes to treat his chronic pain.

Commissioner Shaleen Title told reporters that the commission, in making its decision, should weigh the potential effect of sending people to illicit vaping products, which the US Centers for Disease Control and Prevention have identified as linked to most of the illnesses nationwide.


“Any action has consequences,” Title said. “If we’re going to make a decision, it’s going to be based on evidence.”

On Tuesday, Suffolk Superior Court Judge Douglas H. Wilkins ruled that state law was clear that the commission, not Baker’s administration, should oversee medical marijuana.

In his ruling, Wilkins said the ban on medical cannabis vapes could cause “irreparable harm” to patients who rely on vaping products to treat severe pain and other conditions.

The Supreme Judicial Court will hear arguments on Baker’s appeal of the case in December but may act before then.

The ban on marijuana and nicotine vaping product sales has been in effect since Sept. 24, when Baker announced a public health emergency amid the lung ailments that have killed at least 40 and sickened more than 2,051 people nationwide.

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