What new powers does the compromise give the regulators?

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The compromise bill adds for the Cannabis Control Commission all the operational powers that it needs to function independently as a commission — powers to make appointments, contracts, pay for services, etc.   While those powers might have been implied, it is also possible that the CCC would have felt lacking in power as to basic agency functions and operated, in practice, as a unit of the Treasurer’s office.

As explained below, the compromise devotes a lot of attention to detailing the regulatory powers of the CCC, but really does not expand them much beyond what the CCC would likely have read into the existing language.  The most notable expansion is probably the mandate to control advertising to limit exposure of young people.

The ballot question already gives the CCC broad regulatory powers. G.L. Chapter 94G, s. 4(a) authorizes the CCC to:

adopt regulations consistent with this chapter for the administration, clarification and enforcement of laws regulating and licensing marijuana establishments.

The ballot question further enumerates a number of specific items to be included in the regulations. Among the specific items to be regulated under the existing language added by the ballot question (G.L. Chapter 94G, s. 4(a) ) are:

1) procedures for the issuance and renewal of licenses to operate marijuana establishments [elaborated, but not expanded by the compromise];

(2) a schedule of application, license and renewal fees in an amount necessary to pay for all regulation and enforcement costs of the commission . . . [the compromise removes specific numeric limits on these fees]

(3) qualifications for licensure and minimum standards for employment that are directly and demonstrably related to the operation of a marijuana establishment and similar to qualifications for licensure and employment standards in connection with alcoholic beverages  . . .  regulated under chapter 138 of the General Laws; provided that a prior conviction solely for a marijuana-related offense or for a violation of section 34 of chapter 94C of the General Laws shall not disqualify an individual or otherwise affect eligibility for employment or licensure in connection with a marijuana establishment, unless the offense involved the distribution of a controlled substance, including marijuana, to a minor  [unchanged by the compromise];

(4) procedures and policies to promote and encourage full participation in the regulated marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition and enforcement and to positively impact those communities  [unchanged by the compromise];

(5) requirements for the security of marijuana establishments, including security, lighting, video and alarm requirements and requirements for the secure transportation and storage of marijuana, marijuana plants and marijuana products, provided that the requirements shall not prohibit the cultivation of marijuana outdoors or in greenhouses [rewritten, but not expanded by the compromise];

(6) requirements to prevent the sale of marijuana and marijuana products to persons under 21 years of age [rewritten, but not expanded by the compromise];

(7) requirements for record keeping by marijuana establishments and procedures to track marijuana and marijuana products cultivated, processed, manufactured, delivered or sold by marijuana establishments [elaborated, but not expanded by the compromise];

(8) health and safety standards for the cultivation, processing, manufacture and distribution of marijuana and marijuana products, including standards regarding sanitation for the preparation, storage, handling and sale of food products and reasonable limitations on the use of organic and non-organic pesticides [elaborated, but not expanded by the compromise];

(9) requirements for the packaging of marijuana and marijuana products, which shall include special packaging requirements to protect children from ingesting marijuana or marijuana products and requirements for dividing each serving within a package containing multiple servings in a manner that allows consumers to easily identify a single serving [elaborated, but not expanded by the compromise];

(10) requirements for the labeling of a package containing marijuana or marijuana products that shall include a symbol or other easily recognizable mark indicating that the package contains marijuana and an identification of the marijuana cultivator or the marijuana product manufacturer who produced the marijuana or marijuana product, and for the labeling of a package containing marijuana products, the amount of tetrahydrocannabinol in a package and in each serving of a marijuana product, the number of servings in a package and a list of ingredients and possible allergens [elaborated, but not expanded by the compromise];

(11) requirements for the testing of random samples of marijuana and marijuana products to verify that marijuana and marijuana products are accurately labeled and to verify that products intended for human consumption do not contain contaminants that are in excess of typical standards applied to other commercially available products intended for human consumption [expanded and moved to a new section in the compromise];

(12) requirements for safe disposal of excess, contaminated, adulterated or deteriorated marijuana or marijuana products [elaborated, but not expanded by the compromise];

(13) reasonable restrictions on signs, marketing, displays and advertising with respect to marijuana, marijuana products and marijuana accessories, including prohibiting marketing or advertising designed to appeal to children;

(14) procedures and requirements to enable the transfer of a license for a marijuana establishment to another qualified person or to another suitable location, which shall not be more restrictive than laws governing the transfer of a license for the sale of alcoholic beverages under chapter 138 of the General Laws [ compromise does not include the statement about not being “more restrictive . . . “]; and

(15) provisions for: enforcing this chapter, including penalties for civil violations for the failure to comply with any regulation made pursuant to this section or for any violation of section 13 of this chapter; collecting fees and penalties imposed; suspending the license of a marijuana establishment that include provisions to allow for the continued maintenance and security of any marijuana and marijuana products; terminating the license of a licensee; and appealing civil penalties or licensing actions [compromise moves these ideas to other sections, but does not expand them].

The compromise law removes two areas from the regulatory scope of the commission ( see G.L. Chapter 94G, s. 4(b) ) — (1) industrial hemp, which it places under a new regime, and (2) the total amount of marijuana cultivated within the commonwealth.

New areas of regulation that are explicitly required by the compromise include:

  • standards for the issuance of licenses — this is certainly implicit in the ballot question language.
  • extensive requirements related advertising, marketing and branding — with a goal to discourage appeals to young people.
  • the authority to register or require information regarding the employees of licensees if necessary — this is implicit in the ballot question and consistent with the regulations developed (without any specific authority) to regulate medical marijuana — 105 CMR 725.030.
  • standards for the extraction of oils from marijuana (could be read into the authority to regulate processing generally).
  • standards for liability insurance for marijuana establishments
  • standards for dual operation of a facility as a medical marijuana dispensary and an adult recreational retailer
  • standards for energy efficiency of marijuana operations
  • policies to encourage participation of small agriculture

The ballot question,G.L. Chapter 94G, s. 4(c)  does bar certain areas to regulators:

Regulations made pursuant to this section shall not:

(1) prohibit the operation of a marijuana establishment either expressly or through regulations that make operation of a marijuana establishment unreasonably impracticable;

(2) require testing of marijuana or marijuana products before the commission has licensed any marijuana testing facilities or, if such facilities have been licensed, before such facilities are capable of performing any required tests in a timely manner;

(3) require a customer to provide a marijuana retailer with identifying information other than identification to determine the customer’s age and shall not require the marijuana retailer to acquire or record personal information about customers other than information typically required in a retail transaction;

(4) prohibit a medical marijuana treatment center and an experienced marijuana establishment operator from operating a medical marijuana treatment center and a marijuana establishment at a shared location;

(5) prohibit marijuana establishments from transferring or acquiring marijuana seeds, clones, cuttings, plants or plant tissue from other marijuana establishments or from medical marijuana treatment centers or prohibit a marijuana establishment from transferring or otherwise selling marijuana to a marijuana retailer, a marijuana product manufacturer or a marijuana cultivator; or

(6) prohibit marijuana establishments from using inorganic cultivation methods.

The compromise language leaves these limitations intact, although it handles the timing issue in item (2) in a different section.