Judge orders vape ban lifted for medical marijuana users

Boston Statehouse

BOSTON (SHNS) – A Superior Court judge ruled that Gov. Charlie Baker’s emergency regulations banning the sale of all vaping products “are very likely invalid” as they relate to medical marijuana patients and ordered that the state may not enforce its prohibition on “marijuana vaping products to medical marijuana card holders” starting next Tuesday afternoon.

A group representing medical marijuana patients intervened in the challenge to Baker’s temporary vape sales ban, arguing that the Cannabis Control Commission, not the Department of Public Health, is the only state agency that can regulate marijuana products.

The group’s premise is that the 2017 law that created the CCC “transferred authority to regulate all legal marijuana” from DPH to the CCC and that the Legislature was clear in its law that the CCC should be the lead regulatory body. Judge Douglas Wilkins, in an order issued Tuesday, agreed and said the DPH “likely exceeded its authority by banning vaping products used by medical marijuana card holders.” Wilkins ordered that the administration be “preliminarily enjoined from implementing and enforcing” its emergency regulations as of 12:01 p.m. on Tuesday, Nov. 12.

Wilkins said the ban on vaping products for medical marijuana patients undermines the administration’s stated purposes for imposing the ban. He wrote that the CCC should be the agency to issue an emergency regulation if it feels it is necessary.

“Like any Massachusetts agency, the CCC itself has full authority to adopt emergency regulations. It may choose to promulgate the emergency regulations in whole or in part. Or, it may choose not to promulgate them,” Wilkins wrote. “The choice needs to come from CCC, not DPH or this court.”

The CCC will meet before the ban is to be lifted. The agency is scheduled to meet Thursday and could discuss whether it will issue an emergency regulation to keep vaping products off the shelves.

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