Massachusetts Shutters Recreational Cannabis Retail Establishments and Eases Access to Medical Use

Recreational. On March 23, 2020, Governor Charles Baker, citing concerns about COVID-19, issued a stay-at-home advisory for Massachusetts residents and an emergency order (Emergency Order) that all Massachusetts businesses providing “non-essential” services had to close their physical offices and facilities to their employees, customers and the public effective March 24, 2020. The current expiration date for the Emergency Order is May 4, 2020.

The Governor’s list of “essential services” did not include recreational cannabis because he believes recreational cannabis attracts out-of-state visitors to the Commonwealth. Medical cannabis operators (MCOs), whether colocated with a recreational cannabis business or licensed as a stand-alone treatment center, remain open for business in Massachusetts.

The Massachusetts Cannabis Control Commission (Commission) immediately issued a Bulletin that required all licensed cannabis establishments to follow the Emergency Order. As a result, all Massachusetts recreational cannabis retail businesses closed their doors on March 24, 2020. A copy of the Commission’s March 23, 2020, Cease and Desist Order and Summary Suspension Order (Cease and Desist Order) can be found here.

Medical. The Commission has issued a second Bulletin and an Administrative Order that are intended to ease access to medical cannabis products while the Governor’s Emergency Order is in effect.

1. Telehealth. The Governor followed his State of Emergency Declaration with an Order Expanding Access to Telehealth Services and to Protect Health Care Providers dated March 20, 2020, that applied generally to all healthcare providers and their patients. The purpose of the Governor’s Order was to reduce the risk of COVID-19 exposure for healthcare providers and patients. The Commission quickly issued a Bulletin that authorized telehealth consultations for new medical cannabis patients (Telehealth Bulletin). Pursuant to the Telehealth Bulletin, the Commission can waive the in-person exam requirement in 905 CMR 501.010(7) and authorize a healthcare provider to use telehealth to certify new medical cannabis patients. The Commission has granted approximately 30 telehealth waivers to healthcare providers. The Telehealth Bulletin will continue in effect until the Governor rescinds his Emergency Order. A copy of the Telehealth Bulletin can be found here. 

1. Curbside Delivery. The Commission, on March 27, 2020, issued Administrative Order No. 1, which allows licensed MCOs to conduct sales by phone and/or electronic means and to deliver medical cannabis products to a registered patient or a registered caregiver of a patient at “curbside”. “Curbside” in this instance means that a registered agent of the MCO can deliver a medical cannabis product to a registered patient or a registered caregiver of a patient either in the parking lot of the MCO or at the MCO’s entrance. Delivery on public sidewalks or adjacent parking lots is not allowed. The MCO must make and store video recordings of all curbside deliveries using its existing external security video system. Electronic payments are acceptable (either in advance or inside the MCO at the time of the transaction), as are payment arrangements made by phone. Cash payments must be made inside the MCO and not at curbside. MCOs must notify the Commission and their local municipalities before commencing curbside deliveries and must comply with their community host agreements and other local rules when setting up a curbside delivery program. Administrative Order No. 1 will continue in effect until either the Commission modifies Administrative Order No. 1 or the Governor rescinds his Emergency Order. A copy of Administrative Order No. 1 can be found here.

Finally, the Commission issued a Bulletin on March 31, 2020 (Sanitizer Bulletin) implementing a Massachusetts Department of Public Health (DPH) order that permitted the production of alcohol-based hand sanitizers by MCOs and by Marijuana Product Manufacturers licensed by the Commission. The Sanitizer Bulletin clarified that MCOs and Marijuana Product Manufacturers that produce hand sanitizer must comply with the Federal Food and Drug Administration’s guidance on producing hand sanitizer and the World Health Organization’s Guide to Local Production of Handrub Formulations. MCOs and Marijuana Product Manufacturers that make hand sanitizer must donate their hand sanitizer products to Massachusetts hospitals, licensed health care providers, or others that DPH designates as appropriate recipients. The DPH order can be found here, and the Commission’s Sanitizer Bulletin can be found here. 

Timing for resumption of normal operations by the Massachusetts cannabis industry is unknown. Despite lobbying efforts by recreational cannabis providers and a few Massachusetts legislators, the Governor has refused thus far to add recreational cannabis to his list of “essential services”. Industry representatives have expressed concern that many retail providers of recreational cannabis may not survive a prolonged shutdown. On the medical side, observers are attributing a larger-than-normal increase in the number of registered medical cannabis patients to the cessation of recreational sales.