During a public hearing (sans any public) on Tuesday, September 13, the Marion Board of Health voted in favor of adopting a bylaw that outlaws the sale and purchase of synthetic drugs – synthetic marijuana, synthetic stimulants, and synthetic psychedelics/hallucinogens – but not without a moment of hesitation beforehand.
The bylaw reads, “No person shall sell, offer to sell, distribute, gift, or display for sale synthetic drugs, incense, spice, bath salts, plant food or any blend are also included.”
The ban includes any of the synthetic drug substances manufactured for inhalation, ingestion, or any other delivery systems.
The board debated the practicality of adopting such a restriction after board member Jason Reynolds relayed Police Chief Lincoln Miller’s opinion on the matter.
“His response was that he did not want to go against the town counsel’s opinion that was rendered in January,” said Reynolds, alluding to Town Counsel Jon Whitten’s advice that the Police Department should not be the enforcing authority without a Town Meeting vote. “The other issue that he raised was the fact that there’s going to be a ballot initiative in less than two months’ time … on whether or not marijuana would become legal.”
The chief’s question was whether or not a statewide legalization of marijuana would essentially make the board’s regulation invalid.
“I see where he’s coming from,” said board member John Howard. He later added, “I think we have to honor his opinion as a committee, as a representative of the town until such time as there’s another opinion…”
Reynolds, however, managed to sway Howard’s opinion.
“My personal opinion is that I would hope, just like tobacco products are legal, that even if marijuana became legal in this state, we as a board of health would be able to determine how it was sold in our community just as tobacco,” Reynolds said. “I’m perfectly fine moving forward and regulating the sale of synthetic cannabis and other synthetic drugs and be responsible for policing the few stores in town that exist right now.”
“I agree with you, Jason,” said Howard. “I think we can take that on.”
Reynolds responded, “I think we wanted to try to regulate it as much as possible…. The first thing to do would be to regulate this and build from that.”
The vote to ban the synthetic drugs was unanimous.
In other matters, as the board prepares to move forward on a ban of all flavored tobacco and cigarettes, including menthol cigarettes, Howard, who was absent from the prior meeting when the bulk of the menthol cigarette ban took place, went on the record as saying he opposes the motion, given that more than one source warned the board that the tobacco industry would likely sue the town as a result.
Cheryl Sbarra, senior staff attorney for the Massachusetts Association of Health Boards, said on August 23 that Marion would only be the third or possibly fourth municipality in the entire country to attempt to ban menthol cigarette sales. The tobacco company sued the other cities and towns, and only Providence prevailed in the higher court due to language that restricted the sale of menthol cigarettes to “adult only” venues.
In Marion, with no “adult only” venues of its own, the Board of Health would be passing a virtual ban on the menthol cigarettes.
Town Counsel Jon Whitten also cautioned the board on including menthol cigarettes in the town’s restriction of the sale and purchase of flavored tobacco and nicotine products, but board members Betsy Dunn and Reynolds feel confident that, should a lawsuit threaten the town, the board could rescind the menthol cigarette language from the regulation, or perhaps seek pro bono legal advice from organizations that specialize in fighting the tobacco industry.
“I don’t like to risk litigation,” said Howard. “I don’t want to put the town in that position…. I will go on the record as opposing [the risk of litigation].”
After further discussion, the board decided to hold off on taking any action on the menthol cigarette ban until it can speak with Sbarra to get a sense of the scope of the legal risks and whether the town might solicit enough support from anti-tobacco organizations.
“If [Sbarra] can’t get that info to us, then I think it would be fiscally irresponsible to go into a fight with the tobacco industry,” said Reynolds. “But I do not want to have menthol flavoring in our town.”
The public hearing for the flavored tobacco ban is tentatively planned for October 11.
The next scheduled meeting of the Marion Board of Health is for September 27 beginning at 4:30 pm at the Marion Town House.
By Jean Perry