Mass. Gov. Closes Adult-Use Pot Shops During Virus Crisis

Law360 (March 23, 2020, 9:23 PM EDT) -- Massachusetts Gov. Charlie Baker's executive order to close all nonessential businesses in the state in an effort to curb the spread of COVID-19 would make an allowance for medical marijuana dispensaries, but not adult-use recreational sellers.

Every state that has taken similar steps to contain the virus has deemed medical marijuana businesses essential, on a par with grocery stores and pharmacies, but Baker's order, which goes into effect Tuesday at noon, signals a potential shift when it comes to jurisdictions that have legalized both medical and recreational.

Pro-legalization lobby Marijuana Policy Project sent a letter on Friday to governors of states that have legalized both recreational and medical marijuana, urging them to consider all licensed cannabis businesses critical and permit them to remain open.

"In practice, if marijuana is only available to registered patients, it will shut down access for a lot of people using it medicinally," Karen O'Keefe, director of state policies for MPP, told Law360 on Monday.

O'Keefe noted that many people use adult-use cannabis for medical purposes because of the difficulties involved in securing a doctor's recommendation per requirements of state medical programs. She pointed to factors such as lack of insurance or federal policy barring U.S. Department of Veterans Affairs physicians from recommending marijuana use for military veterans.

Massachusetts issues separate medical and nonmedical licenses and there are distinct regulations governing each market, but many businesses service both. The state's Cannabis Control Commission issued a statement on Monday that it would direct all adult-use dispensaries to suspend sales on Tuesday at noon. So-called "colocated marijuana operations," which are licensed for both medical and adult-use, can continue to perform their medical functions, along with the medical-only centers, the commission said. 

Also on Monday, Denver Mayor Michael B. Hancock initially issued a stay-at-home order, which carved out an exception for "licensed medical marijuana stores," while a representative from the city attorney's office told reporters that adult-use stores were not essential. Later in the day, this was updated to make allowances for all marijuana stores, provided they maintained "extreme physical distancing."

Most jurisdictions with legalized recreational marijuana have deemed it essential. For instance, in California, where Gov. Gavin Newsom issued a stay-at-home order on Thursday, all licensed cannabis businesses, serving both medical patients and nonmedical customers, were considered essential.

Ellen Komp, deputy director of the California chapter of legalization advocacy group NORML, explained that making such a distinction would have been impracticable in the Golden State since the supply chains and retailers for the medical and recreational markets were so intertwined.

In San Francisco, which issued a public health order on March 17 requiring nonessential businesses to close, medical marijuana dispensaries were considered essential, while recreational retailers initially were not. By the next day, the city updated its policy to clarify that both medical and recreational facilities were considered essential.

In an executive order Friday, Illinois Gov. J.B. Pritzker deemed both medical and adult-use dispensaries and cannabis cultivators essential businesses.

Michigan Gov. Gretchen Whitmer issued an executive order Monday closing a wide swath of public places while allowing medical and adult-use dispensaries to remain open, provided they conducted all sales via delivery or curbside service. All in-store, person-to-person transactions are prohibited, according to a spokesperson for the Michigan Marijuana Regulatory Agency.

Also on Monday, Maryland Gov. Larry Hogan issued an order closing all nonessential businesses but exempted growers, processors and sellers licensed by the state's medical marijuana program. The state has not legalized marijuana for adult-use.

--Additional reporting by Diana Novak Jones. Editing by Janice Carter Brown.

For a reprint of this article, please contact reprints@law360.com.

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