The Marijuana Compromise

Read the full text of the conference report here.

We’ve finally reached agreement on a marijuana bill.  I hope that most voters will feel that the language improves on what the majority approved last November while fundamentally respecting the majority’s intentions.

First, to highlight some things that the compromise bill does not do:

As to local voter approval, the compromise does provide that if a community voted against the ballot question last November and local officials want to implement the expressed will of their community by imposing a ban on marijuana establishments, they can do so between now and 2019 without going to the voters a second time.  This affects 91 communities comprising 28% of state’s population.

Second, to highlight the major things the compromise bill does do:

As to regulatory structure and scope,

  • Broadens the governance of the new state regulatory agency, the Cannabis Control Commission, by dividing the appointing authority among the state’s top elected officials.
  • Fills out “boilerplate” powers, duties and procedures for the CCC that were absent in the ballot question language.
  • Strengthens public health protections – the ballot language gave the CCC the authority to regulate advertising, packaging and labelling and to require purity testing, but the compromise bill provides much stronger and more specific direction to the CCC.
  • Defines research questions to be answered by the CCC in the course of implementation.
  • Consolidates the regulation of adult recreational marijuana and medical marijuana under the single new authority, moves the medical marijuana language approved by the voters in 2012 to a new statutory home as Chapter 94I, while preserving the approved language and regulations issued under it.  Previously, this language was not properly codified.  There are a few minor changes, mostly to clarify and streamline procedures for patients.

As to local control,

  • Clarifies procedures for local ballot questions limiting the number of marijuana establishments and adds new language to assure that zoning and other regulations will not be used to evade the requirement of voter approval for numeric limits.
  • Caps the fees that municipalities can charge prospective licensees at 3% of gross sales – the ballot question included no cap.

As to criminal liability,

  • Makes certain possessory offenses civil that remained criminal under the ballot question
  • Adds language assuring that people with prior convictions for possession under the old laws can have their records sealed.
  • Add language intended to direct benefits of the new law to communities that were impacted by enforcement under the old law.

Other measures,

Finally, the compromise does increase the excise tax on marijuana from 3.75% to 10.75%.  It also bumps up the excise that municipalities may add from 2% to 3%.  So together with the state sales tax of 6.25%, the maximum tax goes from 12% to 20%.

That total tax still appears to be among the lowest in the nation and should not, in itself, be a barrier to expansion of the legal market.  I came to peace with the tax increase when it dawned on me that it would give both state and local regulators stronger incentives to actively support expansion.

The compromise reached by negotiators from the House and Senate is subject to final approval in each branch later this week.

I’m hopeful that with these changes, we will be on our way to a well-regulated market in marijuana products that will replace our dangerous and destructive illegal market.

FAQ links:

Published by Will Brownsberger

Will Brownsberger is State Senator from the Second Suffolk and Middlesex District.

94 replies on “The Marijuana Compromise”

  1. I like how you buried the tax increase until the end of the document. This was not what the voters passed last November.

  2. More than triple the excise tax does not appear to be a COMPROMISE! No wonder we are labeled Taxachusetts. Would the legislature triple the tax on alcohol? I’d wager not.

  3. I voted for this: Taxes
    The law implemented the following taxes for recreational marijuana:[4]

    3.75 percent of the total sales tax state excise tax on the sale of marijuana products done by retailers other than marijuana establishments.
    A local sales tax option for sale of marijuana done by a retailer operating within the locality. The tax could be no more than 2 percent of the total sales price received by the retailer.
    Revenue generated by these taxes would be deposited in the Marijuana Regulation Fund.[4]
    —-
    Not what was renegotiated after the vote. Just saying this all seems very fishy to me.

  4. A very reasonable bill – in so many respects, it adheres to the ballot question passed by voters, and even strengthens it in regard to lowering criminal penalties – and a very smart and sensible compromise on local control; to wit, if you live in a city or town that voted for it, it takes a vote of the people to impose a ban; if you live in a town that voted against it, your local legislative body can vote for a ban — makes total sense — as for tax rate, it’s good that the local option tax is going up and in fact many entrepreneurs who seek to enter this new legal marketplace are experiencing significant local resistance– by sweetening the pot (pardon the pun) and allowing municipalities to obtain greater revenue, it will make some communities think twice before they irrationally reject allowing these businesses to open in their community — thanks for your service on a difficult assignment

  5. Thank you for crafting a fair and balanced comprehensive compromise bill.

    I hope there are provisions to encourage the most efficient use of electric power as possible in there as well, with some teeth to the DOER to regulate.

  6. Will,
    Congratulations. Overall this seems positive. I would have preferred that the voters’ preference on taxation be preserved. I hope you are right that the higher tax rate will not undermine the legal market.

  7. Thank you for all your work! Looks like a great start! Let’s get these business up and running so they can make money for themselves and the state!

  8. Thanks Will, Sounds like a reasonable compromise.

    I would have liked the tax cap to be lower. I am presuming that the combination of its being legal and the belief that this will drive down the price of illegal pot enough to make the illegal market disappear, makes this compromise possible to defend.

    I support the deal.

    Dick

  9. I’ll start off by saying I’m not a regular marijuana consumer, so although I wholeheartedly support the decriminalization, none of this will likely ever directly impact me. That aside, you had me thinking this was a pretty good compromise right up until the end when you got to the taxes part. The way I see it, there were really two things that were being decided in the version passed by the voters. First, decriminalization of small amounts for personal possession, and second, the tax rate. At the end of the day those are the tangible items that really matter, not who would be responsible for regulating the industry or really any of the other logistical matters. Frankly, for the legislature to come along and make a decision to not only increase but MORE THAN DOUBLE the tax rate approved by voters without any public approval is a huge slap in the face, and a dangerous precedence to set. What’s to say next time we’re voting on a tax matter that the legislature won’t say “you know what, we know that you approved 4%, but we like nice round numbers, so we’re going to make it 10%”? Finally, hasn’t anyone considered that by more than doubling the tax for legal purchases you may be encouraging people to purchase from, let’s say, “less than reputable” sources, effectively depriving the state of ANY tax money from that sale and doing nothing to cut down on or eliminate the illegal marijuana trade in the state?

    I support everything you said up until the tax increase. This was a huge overstep of the legislature and I cannot support this component of the ‘compromise’.

    1. Fair enough. The Senate was at 12 and the House was 28, so 20 is a compromise down the middle between the branches. And, to repeat a comment from above: I want a successful lawful market to emerge. I made my peace with the tax increase when I came to feel that the greatest risk to that goal was not the tax level (most states are higher than what we ended up with), but the possibility that state and local officials would drag their feet. Giving them fiscal incentives to get the licenses out the door will serve the goal of building the lawful market.

  10. Thanks for your work on this, Will.
    Looking forward to reading through the bill at length later today,but your diligence in this entire process deserves applause. Thank you!

  11. I’m disappointed tat the legislature still feels the need to violate the will of the voters with this tax scheme. The legislature should be replaced due to its failure to listen to the voters. 20% sales tax will ensure the continuation of the black market in for drugs.

    1. I understand and I started from the same place. But I don’t think there is evidence that 20% is too high. The real issue is availability. We need to get the licenses out there and taxes will help do that.

    2. Why must you persecute us – the cannabis community – with a 20% tax, while alcohol drinkers pay only 1-2% on wine and beer?

      Why must you override the founding principles of representative democracy to trample the referendum we just approved?

      We voted for 12% tax – 20% is nearly double. You should be ashamed of yourself.

  12. Hi. My name is Mark Friedman and am a retired pediatrician. There is nothing about how to enforce driving under the influence of the drug and how can the police determine this event.
    I didn’t see specific language about how public service messages would be mad and then sent out to explain to teens,whose brains are still developing and can be impacted by this drug, the negative effects that the teens and their parents should know about.
    In my mind the opioid epidemic is to take care of peoples unhappiness and how will you figure out a way to screen kids who need counseling rather than drugs.

    1. Hi Mark, the bill includes a special commission to study driving under the influence and develop standards for how police can determine this.

      There is also a mandate to the Department of Public Health to develop a public awareness campaign to discourage youth marijuana use (to be funded by Marijuana tax).

  13. Compromise is part of all bills. Just like House Bill 3090, this was a 2 year process where all sides made compromises too. Lets hope this bill can move forward too so kids can benefit from both of their parents after separations and divorces.

  14. I initially opposed the higher tax level as a typical power/money grab by legislators. But I agree with you that it will encourage more communities to accept both recreational and medical marijuana facilities. Spreading them around is a good thing. I look forward to having cannabis retailing be as common and pleasant as liquor retailing.

  15. It looks like most of those commenting are still unhappy with the tax increase proposed.
    In general it looks like a good compromise but I do wonder if the tax will continue to feed the black market the same way border-dwellers head to NH to escape sales tax, liquor & cigarette taxes.

    1. As noted in several places, I want a successful lawful market to emerge. Other states have higher taxes than we will have and are building a thriving lawful market. I made my peace with the tax increase when I came to feel that the greatest risk to that goal was not the tax level (most states are higher than what we ended up with), but the possibility that state and local officials would drag their feet. Giving them fiscal incentives to get the licenses out the door will serve the goal of building the lawful market.

      1. Fiscal incentive = BRIBE !!!

        I don’t care what the taxes are in other states!! I care about what the citizens of the commonwealth voted on and I will never forget that the legislators did not abide by OUR VOTE !!! Just goes to show that legislators will do what they want regardless of what the peoples vote says!! YOU ALL DISGUST ME AND I WILL WORK TIRELESSLY TO SEE THAT ALL INCUMBENTS ARE VOTED OUT OF OFFICE!! The more money you collect the more the regulators will eat up creating their own bureaucracy !! I will never, EVER buy from anyone who collects the tax !! YOU CAN SHOVE YOUR TAX UP YOUR ASS!! TAXachusetts shows once again that all it cares about is garnishing more of the peoples money !!!

        1. In case you are a medical user, I should clarify that medical remains tax free.

          There is a big difference between fiscal incentive and bribe — fiscal incentive benefits the community; bribe benefits the individual.

  16. Thanks, Will, for all of your attention and effort. This looks like a workable compromise. I hope that your constituents support you on this.

  17. Thank you Senator. I feel we can all live with this. Thank you so much for your hard work.

  18. Senator Brownsberger,

    Initially, you had said that you wouldn’t feel comfortable supporting a a bill which, in any way, changes the language approved by the voters.

    What made you change your mind on the tax issue?

    Also, thank you kindly for all of your hard work on this bill. It is much appreciated, and I realize you were negotiating in the context of a larger picture.

    1. I want a successful lawful market to emerge. I made my peace with the tax increase when I came to feel that the greatest risk to that goal was not the tax level (most states are higher than what we ended up with), but the possibility that state and local officials would drag their feet. Giving them fiscal incentives to get the licenses out the door will serve the goal of building the lawful market.

  19. Thank you, Senator.
    We’ll have to see how it plays out, but I think that what you’ve done is a good starting point. Nice touch with defending democracy as best as possible.
    A 40% tax increase above what the people voted on (12 to 20) will hopefully not have adverse effects as to elimination of the black market, also known as unintended consequences.
    Peace be with you, sir.
    I’m usually not a 1 issue voter, but I feel that this is progress towards individual freedom, therefore a good enough reason to support you in the next election.
    I await to see what the House proposes.
    They may just adopt the Senate bill.
    I wish you well.
    Sincerely,
    STEVEN JEFFREY

  20. Good compromise, except for the tax tripling. You didn’t mention where the tax is going? Is it earmarked for specific programs?

    1. First it is to pay for the regulatory process. But then it can be used for public health and public safety purposes. We don’t put hard numbers on the split.

      The total tax mandatory tax goes from 10 to 17 and the total possible tax goes from 12 to 20 — FWIW, not a tripling.

  21. Well after giving up Cigarettes more than a decade ago I have no interest in buying
    marijuana products, this does sound & read as a good bill and I do appreciate your efforts to obtain a result that the Legislature & Governor can support that protects more than the essence of the law as it was passed by voters. I do caution folks tho on thinking the taxes and sales will address much in budget woes. I that old saying; “don’t count your chickens before they are hatched”, our Current Federal Attorney General may yet acts against ALL sales of this drug. And I then expect States to take this to Court as a States Right and fight such Trump Administration action!

  22. Not happy about the 20% tax. I’ll be voting for and supporting whoever runs against Speaker Deleo. It’s the people’s commonwealth and it’s the people’s money and the people’s law. If the elected legislative body wanted a crack at this, they should have taken action before the people of Massachusetts had to. But that body avoided it because they were scared to act. I appreciate the good things in that that were debated but feel that 20% is a pretty fundamental problem.

  23. Hi Senator, can you confirm regulation of the Medical Marijuana program will also be migrated to the CCC under the compromise bill? If so, what impact can companies start-up under DPH regulations expect from the change in oversight?

  24. Thank you for the information. It’s great that the state legislature could find a solution that changes so little of what we all voted for.

  25. I can live with the compromise however, I am not happy the Speaker DeLeo became involved.
    My question: Why are we waiting a whole year to implement the new compromise? I don’t expect shops to open next week but a whole year away?

    1. The commission should be up and running this Fall. They are to accept licenses by April 1, 2018 and start issuing licenses on or after June 1, 2018.

      The commission has gobs of work to do in defining in the regs and procedures.

      Any prospective licensees have plenty of work to do locking in sites and municipal host agreements.

      April 1 is very aggressive.

      I don’t think it could happen any faster.

  26. Maybe this compromise will be OK. But we do need to know if this legislation is eliminating the illegal pot trade or not. Does the legislation, or the plan for implementation, provide for collecting data to test the decline, or increase, in the illegal trade?

    1. Yes, the legislation does contemplate a research agenda including:

      (v) a market analysis examining the expansion or contraction of the illicit marketplace and the expansion or contraction of the legal marketplace including estimates and comparisons of pricing and product availability in both markets;

      Read the whole research agenda here

  27. The state coffers will over flow with tax money on Cannabis. I didn’t see license requirement for industrial use , nor one for home grown , looks to me that Massachusetts is on its way out of prohibition days .The next factor must be drug testing by employers and unions The test must test for THC delta 9 at per-se level .. NOT … THC -COOH residue.( spent THC ) This is attacking many Citizen , The case law with Barbuto vs Advantage sales and marketing decision does not go far enough many have no medical issue.

  28. Thanks for helping to move this matter forward. I understand the complaints of those who don’t like the change in the total tax rate (or the components that make up the total…seems to be confusion there!). However, any comparison with other regulated substances should include tobacco as well as alcohol, and include both federal, state and local taxes for a legitimate comparison. Maybe you could provide that comparison? I would think tobacco would be highly taxed?

    For those towns who did not vote in support of legalizing marijuana, what are their options to reverse that position in the future if they so choose? I assume they are not locked into a position of rejection for eternity?!

    1. Right. Alcohol is taxed less heavily. Tobacco more heavily.

      The 2016-no-voting communities are not in any way locked into their no vote. Unless their officials pass an ordinance limiting marijuana establishments, they are eligible for licenses. And, any town can repeal a ban on marijuana establishments without a popular vote.

  29. Thank you for your work on this compromise. Although the tax rate is higher than approved by the voters if it helps localities to accept the retail operations I can accept that situation. I am still concerned about the timeline to retail, Nevada went from approval to retail in 7 months, why is it going to take 2+ plus years in Massachusetts? I still sense a lot of opposition in the legislature to any kind of legalization. Which is leading to a lot of foot dragging.

  30. OUI The 13 member board is a voting board by a quorum ,which is not good there is only 3 pro position for liberty rest is reflective in law enforcement or heath ,
    currently there is NO test that test impairment that would not be intrusive ( like taking your blood) the 5th amen would prevent such but like most DMV License contacts they punish you for refusing a test ( Time to invoke RIGHT TO TRAVEL ) people you do not need a license to travel

    1. Yes. We recognized that there is no good test for marijuana intoxication. That’s why we created a study group instead of writing something into law.

      It is not a final decision-making body, it can only make recommendations. If “liberty” oriented members disagree with the majority report, they can issue a dissenting statement.

  31. Thanks so much for your sanity in this process; compromise can overcome fear.
    This is a wondrously clear discussion of our paths to the munchies. I do appreciate the time and technicalities, but the lack of good faith by Speaker DeLeo will not soon be forgotten.
    Happy Summer, Will!
    Rozann

  32. Which confree’s idea was the compromise of using the data from the ballot question? It was very creative.

  33. I am very happy with the compromise the house and senate made. I do have a question on where the tax money goes to. Seem it’s mostly goes to funding the CCC and use in drug education. And while that’s important I wonder if any of those funds can go to programs like rehab and others like that to help tackle the issue of harsher drug usage.

  34. Dear Senator Brownsberger,

    I want:

    #1: Everybody out of jail. Looks like the bill does that. Yeah!

    #2: Legal growing, distribution, sales, use, etc. now. I don’t see that.

    #3: Tax as we voted.

    -Bil

  35. Hello again Senator Brownsberger,

    Sorry for the follow up questions.

    Some (mostly the lobbyist for the municipal associations, who have spent months trying to strip local control from voters) are suggesting that the compromise is a unconstitutional, as it introduces an element to the ballot question that the voters did not approve while also potentially running afoul of the equal protection clause.

    It has been said that House and Senate lawyers don’t agree with that analysis, but perhaps you can explain why the House and Senate lawyers felt that way?

    The worry here, of course, is that if the compromise on local control is overruled in the courts, the law would default to only local elected representatives being given a say in whether cannabis industries are allowed/banned in a given town.

    Is there a chance of such a thing happening? If so, what options would be open to lawmakers should such a successful court challenge occur?

    1. I think that the suggestion of a constitutional challenge is nonsense.

      The equal protection clause requires strict scrutiny of laws that discriminate based on special categories like race or gender.

      This law doesn’t do that. In a general case like this, the courts respect laws that have a “rational basis”, which this law certainly does: Those communities which have already voted shouldn’t have to vote again.

      I have trouble imagining this going anywhere.

  36. Will the excise taxes be collected at each stage of the supply chain? I.E., Will growers/wholesalers/processors/retailers each be subject to the 10.75%/3% state/muni excise tax? If so that could lead to a total tax of 40% or more for the finished product. I would oppose that.

    Overall, I’m pleased with the changes including the compromise on local control.

  37. Will, thanks for your work on this. I’m really not happy with the increased taxes, as this will keep the black market in business for the most cost sensitive consumers.

    1. That’s a concern. But would really keep the black market going would be the failure to open a decent number of outlets — as the discussion progressed, I became more and more focused on that risk.

  38. Thank you Senator Brownsberger, for publishing this and explaining things so carefully. Can we have some information on the state budget?

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