Medical Pot Deemed 'Essential' Amid COVID-19 Shutdowns

By Sam Reisman
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Law360 (March 17, 2020, 9:05 PM EDT) -- As municipalities are closing or considering closing retail operations to stem the spread of COVID-19, multiple city and state health departments have affirmed that medical marijuana dispensaries are "essential" businesses, like pharmacies or grocery stores, and will remain open.

In addition, some states, such as Michigan, Illinois, Massachusetts, Washington and New York, have issued bulletins relaxing regulations regarding delivery and in-store transactions in order to limit contact between patients and vendors.

According to public guidance issued by the New York Department of Health on Tuesday, the state's dispensaries will be allowed to expand their delivery service without prior government approval and to conduct sales through the shop's door, provided they comply with all regulations and laws, such as recording the transaction on camera and validating patients' identification.

"In the event nonessential businesses are forced to shut down due to COVID-19, registered organizations in the medical marijuana program will be considered essential and allowed to remain open because they are considered medical providers," a spokesperson for the New York State Department of Health said Tuesday.

Illinois' Department of Financial and Professional Regulation said on Tuesday it would allow medical dispensaries to sell cannabis "on the dispensary's property or on a public walkway or curb adjacent to the dispensary," but noted that delivery to patients was not allowed.

The adjustment to the rules did not extend to the state's adult-use market, which came online at the beginning of the year. Recreational sales still have to take place indoors, in "limited access areas," but dispensaries were instructed to maintain six feet of distance between consumers.

The IDFPR, which regulates both the adult-use and medical marijuana markets in Illinois, said it was "aware of at least eight dispensaries that have voluntarily suspended adult-use cannabis sales, while others are implementing patient-only hours."

Massachusetts' Cannabis Control Commission on Friday advised medical dispensaries that deliver to consider enlarging the areas they service and to ask patients to place larger individual orders. 

The Michigan Marijuana Regulatory Agency said Monday it will ultimately have to approve all delivery methods used by cannabis retailers, but in the meantime, the agency will temporarily permit delivery to customers and patients whose current addresses may not match those on their state-issued identifications and also allow dispensaries to do curbside deals with their clientele.

"Customers may remain in their parked vehicle, in the parking lot of a licensed provisioning center or adult-use retailer," the MRA advised in its bulletin. "Customers may complete an order including payment for their product via the internet or they may place their order once parked at the facility."

On Monday, Washington state's liquor and marijuana regulator similarly announced it was considering ways to help cannabis retailers continue selling while their public premises were closed due to COVID-19, such as tweaking regulations to allow for curbside service.

Pennsylvania Gov. Tom Wolf on Monday urged nonessential businesses statewide to close for two weeks, among which were included "retail facilities, including shopping malls — except for pharmacy or other health care facilities within retail operations," but the appeal did not extend to the dispensaries licensed under the state's medical marijuana program. 

A spokesperson for the Pennsylvania Department of Health said on Tuesday that "medical marijuana dispensaries are considered the same as pharmacies, and so they are considered essential during this time of nonessential retail being shut down to mitigate and increase social distancing."

And in California, where marijuana is legal for both medical and nonmedical adult use, officials in San Francisco initially drew distinctions between the two markets, before shifting gears.

On Tuesday, the city issued a public health order requiring nonessential businesses to close. While medical marijuana dispensaries were deemed essential and therefore exempt, recreational retailers were not. By Wednesday, the city's website had been updated to read that both medical and recreational facilities were considered essential.

Ellen Komp, deputy director of the California chapter of legalization advocacy group NORML, explained that the city had initially focused on medical need, but many retailers service both markets, as does the rest of the cannabis supply chain.

--Editing by Janice Carter Brown.

Update: This article was updated on Wednesday to reflect a change in San Francisco's policy toward recreational retailers.

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