Proposed Changes to Massachusetts Marijuana Law “Insults Voters”

A supporter holds up a “Yes on 4” sign at the 2016 Boston Freedom Rally (Scott Gacek/The Daily Chronic)

BOSTON, MA — The Massachusetts Joint Committee on Marijuana Policy has voted to advance a bill to repeal and replace the marijuana legalization measure approved by voters in November, angering supporters who are calling the proposal an “insult to voters.”

According to the Marijuana Policy Project (MPP), who carefully crafted the language of the voter-approved Question 4, the proposal approved by Beacon Hill lawmakers this week “bears very little resemblance to the legalization law passed by 1.8 million voters in November.”

“The bill would undermine efforts to replace the unregulated market with a system of licensed businesses,” says Will Luzier, MPP’s campaign manager for Question 4. “It would take away the right of voters to decide on local marijuana policy, and it could impose a tax rate on marijuana that exceeds 50%. It authorizes the sharing of information with the FBI on cannabis commerce, including employees and medical patients. It also makes the Cannabis Control Commission — the entity that will regulate marijuana businesses — less unaccountable.”

The proposed changes to Question 4, which was approved by 54 percent of voters last November, could be voted on by the full House as early as Thursday.

This is not the first change to the marijuana legalization law.  As written, Question 4 called for regulated marijuana sales to start in January 2018.  Last December, in a sparsely attended special session, lawmakers quickly and quietly passed a bill that delayed marijuana sales until July 2018.

Increased Taxes

Among the most notable changes proposed by lawmakers is a massive increase in taxes on recreational marijuana sales, more than doubling the maximum tax imposed on retail cannabis sales.

The language of Question 4 imposes an excise tax of 3.75% in addition to the state sales tax of 6.25%, adding a total 10% sales tax at the point of sale. Local communities have the option to add an additional 2% sales tax, making the total possible tax 12%.

The proposed changes to the law call for a much higher excise tax of 16.75%, in addition to the 6.25% sales tax, making the total minimum tax statewide 23%.  Cities and towns could then tack up to 5% more in local taxes, bringing the total possible maximum tax to 28%, more than double the rate approved by voters.

Medical marijuana sales would remain tax-free.

“The House proposal in no way improves the measure passed by voters. It weakens it and it insults voters in the process,” Jim Borghesani, spokesman for the Yes on 4 campaign, said in a statement. “Its irrational tax increase will give drug dealers the ability to undercut the legal market, and its removal of ban authority from local voters will give a handful of selectmen the ability to overrule the opinion of their own constituents.”

Rep. Mark Cusack (D-Braintree) is co-chair of the Joint Committee on Marijuana Policy, the committee who wrote the proposed legislation behind closed doors, largely in secret.  Cusack touted the proposed changes to the bill as necessary, claiming the will of Bay State voters has not been compromised.

“The voters voted to allow people 21 years of age and above to be able to access a regulated and safe marketplace. That is exactly what this bill does,”Cusack told the Boston Globe. “The ballot question is fundamentally flawed.’’

Cusack says the higher tax rate is “a responsible tax rate” and is necessary to fund regulation while generating additional income for the state.

But not all lawmakers are on board with the legislature’s re-write of the citizen initiated referendum, including Cusack’s co-chair for in the joint committee, Senator Patricia Jehlen (D-Somerville).

“This proposed bill directly assaults the will of the voters,” Sen. Jehlen told the Boston Herald, noting that the proposed 28% would be among the highest tax rates in the eight states that have legalized retail marijuana sales.

“If you keep more people in the illicit market, you’re not getting their taxes,” she told CBS News. “Second, if you raise the tax too high, you keep people in the illicit market.”

Also prominent among the many changes to the marijuana law is transferring the authority to restrict or ban cannabis related businesses.  As approved by voters, the current marijuana law requires municipal officials who want to ban or restrict marijuana related businesses from operating in their communities to get final approval from voters via a referendum.

The proposed changes to the marijuana law strip that final say from voters, giving local lawmakers unilateral authority to ban or limit dispensaries, cultivation facilities, and other marijuana related businesses operating in their communities.

“The removal of ban authority from local voters will give a handful of selectmen the ability to overrule the opinion of their own constituents,” says Borghesani.  “We think that will be problematic and could usher in a new era of prohibition.”

“The public has always been ahead of legislators on this issue, in Massachusetts and every other state. To turn around and alter something the public passed and take power away from voters, and give it to elected officials who have not been leaders and have shown a reluctance to embrace new marijuana public policy is a big mistake and a dramatic revision of the bill passed by voters,” Borghesani added.

Home Cultivation

While home cultivation of up to 12 plants per household remains in the proposed law, advocates are concerned that the law opens the door for the Cannabis Control Commission, the agency created to oversee the state’s marijuana industry, to reduce the plant limit or impose restrictions and regulations on home grows.

According to the proposed changes to the law, the commission would be allowed to “establish rules and regulations on the unlicensed manufacture of marijuana or marijuana products within a person’s primary residence.”

Advocates fear the language could allow regulators to require expensive home cultivation licences, home grow site inspections, or reduced plant limits.

Changes to Oversight

The third major change to the law involves the Cannabis Control Commission, the governing agency established by Question 4 to regulate the marijuana industry in Massachusetts.  Under current law, the state treasurer has the sole authority to hire and fire the three members of the Commission.

But under the proposed changes to the law, the Commission would be expanded to five people, and give the treasurer, Governor and Attorney General each the ability to appoint one member to the Commission. The other two seats would be filled by a majority vote of the thee appointed members.

The Commission would still be a part of the treasurer’s office, and they do not appear to support the proposed changes.

“While we are still reviewing all the details of the bill, it is apparent that this structure does not provide operational authority or accountability within the treasurer’s office, which we believe is critical to have a safe, secure, and efficient implementation,” Chandra Allard, a spokesperson for state treasurer Deborah Goldberg, told the Boston Globe.

Medical Marijuana

While most of the outcry regarding the proposed changes to the marijuana law come from supporters of recreational marijuana, medical marijuana advocates are concerned with a provision in the proposed bill that strips oversight of the state’s medical marijuana program from the Department of Public Health and reassigns it to the Cannabis Control Commission, placing all of the state’s marijuana oversight — both medical and recreational — under one governing body.

While this consolidation could be helpful in reducing bureaucratic oversight, advocates fear that could place the state’s medical marijuana program at risk in the current political climate.

Marijuana remains illegal under federal law, but while the Obama Administration mostly looked the other way, the Trump Administration’s Justice Department, under the leadership of longtime marijuana foe Attorney General Jeff Sessions, appears to be leaning towards a federal crackdown of recreational, and possibly medical, marijuana sales.

House Expected to Vote Thursday

The bill is expected to be introduced to the House on Thursday. While the bill advanced out of committee by a 10-1 vote, some committee members say their support for the bill, as written, ends there.

“With deep reservations I will be supporting this out of committee but I will not at all hesitate to vote no on the floor … if this bill continues in the shape and form as it is,” Rep. Aaron Vega (D-Boston) told the Boston Herald.

If you are a Massachusetts resident, the Marijuana Policy Project is asking you to please call your state representative and tell them not to vote for this bill when it is presented for a vote.  You can do so by clicking here.

“We must not allow politicians to repeal and replace the will of the people, especially when their proposed changes are so flawed and misguided,” they say.

Update: The Salem News is reporting that legislative leaders have decided to postpone a vote until next week.

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