BOH Weeds Through Pot Regulation Options

With a marijuana moratorium in place, the Marion Board of Health finds itself at its leisure when it comes to drafting up local regulations for adult non-medical marijuana use establishments. Unlike some Massachusetts municipalities crafting ‘placeholder’ draft regulations in time for April 1 when the Massachusetts Cannabis Control Commission (CCC) starts accepting marijuana establishment applications, Marion has until the end of this year to implement theirs. Still, Board of Health members are eager to get a glimpse of what their options are pertaining to regulation and enforcement of the sale of marijuana.

Cheryl Sbarra, senior staff attorney and director of the Tobacco Cessation and Prevention Program and Chronic Disease Prevention Program for the Massachusetts Association of Health Boards, once again assisted the board on February 27 by introducing a tentative regulation placeholder template some municipalities without a moratorium are looking at. The placeholder was drafted by a working group in which Sbarra is a member.

Sbarra said what she presented to the board that day is somewhat of a checklist “menu” that boards of health could pick from, and included in that “menu” are some regulations similar to those of tobacco already in place.

Some of these options are expected as standard: food code enforcement for edible marijuana products; a section for calculating a fee structure along with permitting costs; the restriction of smoking or ‘vaping’ marijuana on establishments that sell marijuana; and banning vending machines, coupons, and free samples.

Some of the options that could be considered ‘unreasonable,’ difficult to enforce, or that exceed the state’s own regulations, however, were marked with an asterisk pending a determination of legality.

One such asterisked policy option, for example, is “No person shall cultivate marijuana without first obtaining a Home Cultivation Permit from the … Board of Health.”

“[We’re] not sure at this point whether boards of health would have the legal authority to do this … or the means to enforce it,” Sbarra said. That option could ultimately be deemed off the table once the state releases its regulations, as well as other marked options like increasing the minimum legal sales age from 21 to 25 and banning flavored combustible or ‘vaped’ marijuana products, similar to the board’s agenda with flavored nicotine products.

“Anything deemed unlawful can just be taken out,” said Sbarra. A “severability clause” was included in the template for just that purpose. “Normally [a municipality] can be stricter (than the state), but with this specific law … locals are preempted from doing other things.”

The Board of Health would likely maintain the authority to set the hours of operation, which Sbarra recommended involving the Police Department when discussing such aspects of the regulation.

Enforcement of the regulations, Sbarra told the board, is critical. “You have lots of discretion in ways you can enforce it,” which, she added, would be similar to tobacco and nicotine enforcement, with perhaps more substantial penalties for violations. A violation for selling tobacco to a minor, for example, could cost a retailer $100. “And I just think that’s not proper for marijuana establishments,” said Sbarra. “To me, [one hundred dollars] is not enough of a penalty.”

The board could consider hearings to suspend licenses, revoking licenses, and steeper fines that could even be as high as $1,000.

“I think that’s really an important piece to this,” said Sbarra. Much thought should go into structuring fines, she added.

Again, Sbarra emphasized, “This is a placeholder because we don’t know all the answers. This is new to us, but this can always be amended.”

Sbarra said Marion was the first town to review this placeholder, apart from the towns and cities involved with Sbarra in the working group drafting it.

The CCC is expected to approve and release its final regulations on adult-use non-medical marijuana on March 15, but Marion is under no pressure to produce its local zoning and public health bylaws in time for the April 1 date.

“This will be our Number One priority and goal,” Board of Health Chairman John Howard stated.

Planning Board Chairman Eileen Marum was also present, and she told the Board of Health that she would be presenting town counsel with a preliminary draft of the Planning Board’s zoning bylaw the next day.

“…And maybe we can get this zoning bylaw passed in May (Town Meeting),” said Marum. “I don’t know, it’s gonna be tight; it’s gonna be close.”

The next meeting of the Marion Board of Health is scheduled for March 13 at 4:30 pm at the Marion Town House.

Marion Board of Health

By Jean Perry


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