Coronavirus and Cannabis: Massachusetts Regulatory Updates

By Alex Lamphier

May 18, 2020

This VS Insight is dedicated to updates regarding the coronavirus and cannabis in Massachusetts. For updates on other states or coronavirus-related issues, see our main post on the subject, "Coronavirus and Cannabis: Monitoring the Impact."

Cannabis regulations are in flux across the U.S. as officials at every level of government work to contain the new coronavirus (COVID-19). Vicente Sederberg is closely monitoring the situation, and we are communicating with regulators to understand how these local, state and federal responses may affect cannabis business operators, medical patients, and other cannabis consumers. We are committed to doing everything we can to keep our clients and the public updated as we learn of new developments, but please note this is an extremely fluid situation and there is a lot we do not know. This VS Insights post is for informational purposes only and not for the purpose of providing legal or tax advice. We strongly encourage you to contact an attorney if you are seeking advice regarding any specific legal or tax issue.

Latest Updates

May 18, 2020

  • Governor Baker announced his administration’s plan for “Reopening Massachusetts” which included guidelines for businesses permitted to reopen in Phase 1 and an outline of when certain types of businesses may reopen in Phases 1 through 4. In accordance with the Governor’s guidelines, retail businesses will be permitted to reopen for curbside and delivery service only beginning on Monday May 25, including adult-use cannabis retail businesses.

  • The Cannabis Control Commission released a Final Cease and Desist Order in response to Governor Baker’s plan for “Reopening Massachusetts.” The order permits adult-use retail business to reopen for curbside takeaway only beginning on Monday, May 25, but all adult-use cannabis businesses may immediately commence normal manufacturing, cultivation, transportation, and testing operations. This includes retail businesses that can begin staffing and non-retail operations necessary to prepare for sales to begin on May 25. Businesses will be required to maintain written operating procedures for workplace safety and must be able to demonstrate compliance with the state’s reopening requirements for all businesses.

  • Beginning May 25, 2020, licensed adult-use retailers are permitted to conduct sales transactions by phone and electronically, and engage in “Curbside Operations,” per the Commission’s Administrative Order No. 1 Allowing Curbside Operations. Under this order, a retailer may dispense marijuana and marijuana products to an eligible adult-use consumer located in a vehicle in the retailer’s parking area or at the secure entry vestibule of the retailer’s facility.

    • Important requirements for adult-use retailers seeking to begin curbside operations include, but are not limited to:

      • Implementing and maintaining compliance with the same workplace safety operating procedures and standards required for all ME Licensees;

      • Notifying the Commission and host municipality officials before commencing curbside operations;

      • Preparing and submitting curbside standard operating procedures and a facility layout indicating changes to the outdoor premises to the Commission within 48 hours of commencing curbside operations; and

      • Providing a copy of the updated facility layout to host municipality police and health officials, and maintaining compliance with the provisions of Host Community Agreements and local ordinances, bylaws, rules and regulations.

April 7, 2020

  • The Cannabis Control Commission issued an amended cease and desist order concerning adult-use operators’ ability to conduct certain business functions while the cease and desist order remains in place.

    • Adult-use Marijuana Establishments (MEs) and Colocated Medical Operations (CMOs) conducting retail, cultivation and product manufacturing operations may complete wholesale transfers of adult-use cannabis and cannabis products to CMOs or Medical Marijuana Treatment Centers (MMTCs) where necessary to maintain the medical cannabis supply chain, subject to compliance with the amended cease and desist order.

    • As long as farm and support service workers are deemed essential under Governor Baker’s Extended Essential Services Order, adult-use cultivation and product manufacturing operations may designate necessary staff to maintain cultivation and product manufacturing operations- new plantings and processing harvested cannabis into finished products should only be conducted to the extent necessary to support the medical supply chain.

    • As long as security staff to maintain building access and security measures are deemed essential under Governor Baker’s Extended Essential Services Order, adult-use retail operations may designate necessary staff to maintain security.

March 31, 2020

  • Governor Baker issued an order extending the shutdown of non-essential businesses and prohibiting gatherings of greater than 10 people until May 4. Licensed medical cannabis businesses are designated as essential, but adult-use businesses are not. Adult-use sales, which shut down March 24, will remain on hold.

    • At a press conference, the governor reiterated his concern that allowing adult-use sales to resume would attract visitors from other states at a time when Massachusetts is trying to reduce travel into the state. He has said this is the "main reason" for not designating adult-use sales essential. A reporter asked whether adult sales could be limited to only Massachusetts residents, and the governor suggested it might not be legal to treat residents differently than non-residents. 

      • A memo produced by VS's public affairs consulting affiliate, VS Strategies, concluded that Massachusetts would be standing on solid legal ground if it limited sales to only Massachusetts residents during this public health crisis. It highlighted Colorado's experience with establishing different adult-use cannabis purchase limits for non-residents compared to residents. Illinois also currently maintains different adult-use purchase limits for non-residents. 

March 27, 2020

  • The Massachusetts Cannabis Control Commission (Commission) issued an administrative order permitting Medical Marijuana Treatment Centers to begin curbside sales operations.

    • Curbside operations will allow registered patients or caregivers to place an order to a participating Medical Marijuana Treatment Center by phone or other electronic means.

    • Medical cannabis products would either be picked up outside of the dispensary entrance or may be delivered by a licensed dispensary agent to the patient or caregiver’s vehicle parked in the dispensary parking lot, depending on the operational protocols of the participating Medical Marijuana Treatment Center.

March 24, 2020

  • The Massachusetts Cannabis Control Commission (Commission) issued a cease and desist order in response to Gov. Baker’s emergency order for the closure of nonessential businesses requiring certain cannabis businesses to close temporarily. The Commission also published a Frequently Asked Questions guide concerning its cease and desist order and Gov. Baker’s emergency order.

  • The Massachusetts Department of Health (DPH) issued an order permitting Medical Marijuana Treatment Centers and Marijuana Product Manufacturers to produce alcohol-based hand sanitizer. The hand sanitizers produced by such cannabis businesses are to be made exclusively for donation to Massachusetts acute care hospitals and other individuals and organizations deemed appropriate by the Massachusetts Emergency Management Agency or the DPH.

March 23, 2020

  • Governor Baker issued an emergency order compelling the closure of all non-essential businesses effective as of March 24 at noon, which order will stay in effect until April 7 at noon. In a press conference shortly after announcing the order, Governor Baker clarified that, while medical cannabis dispensaries will be designated as essential businesses allowed to remain open, adult-use cannabis retail operations would be forced to close, citing fears of cannabis businesses attracting out-of-state residents which would impact Massachusetts’ ability to contain the spread of COVID-19.

  • Separately, the Massachusetts Department of Public Health issued an “assemblage guidance” advisory, also to become effective as of March 24 at noon continuing until April 7 at noon, encouraging all to stay in their homes unless leaving to perform essential functions, such as patronizing essential businesses (while adhering to physical distancing guidelines) and getting exercise outdoors.

March 22, 2020

  • The Board of Health for the Town of Nantucket issued an emergency order to shelter in place on the Island, to become effective as of 5pm on Monday, March 23. The order requires all individuals living on the island to stay in place except to engage in essential activities, and only allows for certain “essential businesses” and “healthcare operations” to remain open to conduct business. Under the emergency order, cannabis dispensaries are deemed to be an essential “healthcare operation” and are allowed to remain open to serve patrons. (Note: pursuant to Governor Baker’s shelter in place order taking effect March 24, adult-use cannabis operations will be required to cease despite Nantucket’s emergency order).

March 20, 2020

  • The Commission issued an updated bulletin regarding certifying health care providers’ ability to certify new patients for medical cannabis. This bulletin was issued in response to Governor Baker’s Order Expanding Access to Telehealth Services and to Protect Healthcare Providers. The bulletin acknowledges that requiring a potential new patient to be physically present for a clinical visit in accordance with 935 CMR 501.010(7) would cause undue hardship to medical providers and patients by increasing their exposure to COVID-19, and permits certifying healthcare providers to submit a waiver to the Commission if they wish to certify new medical cannabis patients via telehealth for as long as the Governor’s telehealth order remains in place.

March 18, 2020

  • The Massachusetts Cannabis Control Commission (the Commission) issued an updated bulletin for licensees regarding COVID-19. In the bulletin, the Commission urges licensees to:

    • Consider designating specific hours to protect at-risk groups (particularly seniors)
    • Mandate mobile ordering or other forms of pre-ordering
    • Strictly limit lines to incorporate a six-foot space between customers who visit the store
    • Clean surfaces every half hour
    • Ensure that agents wear protective equipment at all times

March 15, 2020

  • Massachusetts Governor Charlie Baker instituted an order requiring, in part, the prohibition of gatherings of 25 people or more. Bars, restaurants and other establishments selling food or drink may not permit on-premise consumption but can continue to operate exclusively for take-out and delivery purposes. The order will remain in effect until April 6 but may be extended. The order does not apply to retail stores.

March 13, 2020

  • The Commission issued a bulletin for licensees relative to COVID-19 preparedness. The bulletin suggests that licensees evaluate their protocols related to agent-to-patient/consumer interaction and to publish those protocols. The bulletin also suggests that establishments implement procedures to limit lines and crowds, as well as to utilize pre-order and pick-up features. Medical operators that offer patient delivery currently are encouraged to promote and expand the service and remind patients of the ability to obtain a 60-day supply of medical cannabis. Certifying healthcare providers are reminded that telephonic consultations for renewing a patient’s medical certification are permissible so long as a clinical visit has occurred in the past year.

March 10, 2020

  • Governor Baker issued a state of emergency, giving the administration more flexibility to respond to the outbreak. The declaration urged employers and large corporations to limit or eliminate large events where possible.

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