Medical marijuana users in Massachusetts are on track to regain access to vaping products next week.
That's after state cannabis regulators declined Thursday to uphold the state administration's ban. But access could be short-lived amid ongoing legal challenges, and potential future regulatory measures.
The executive director of the Massachusetts Cannabis Control Commission (CCC) said Thursday he may pursue a quarantine of oil-based cartridges if a court order to resume sales of medical marijuana-related vaping products on Tuesday remains in place.
Commissioners said at a packed public meeting, however, that they do not feel comfortable implementing a more concrete restriction until public health officials get a better understanding of a vaping-related lung illness outbreak or until the future of Governor Charlie Baker's emergency restriction is clear.
Baker's sales ban is set to lift Tuesday for medical marijuana patients — but remain in place for other vaping products — following a ruling this week from Superior Court Judge Douglas Wilkins that only the CCC, not the Department of Public Health, has authority to restrict cannabis use.
The administration appealed Wilkins's ruling and asked for a temporary stay preventing the medical marijuana vape ban from ending to avoid confusion. A decision on whether to stay the order could come before Tuesday.
The stay would allow the ban on all vape sales to remain in place while the case goes to the Supreme Judicial Court on December 9, but if it is not awarded, medical marijuana vaping products could return to shelves starting at 12:01 a.m. Tuesday until the CCC or its executive director acts.
Under Wilkins's decision, the CCC could have voted this week to retain the ban's coverage of medical marijuana vape products, but members opted not to take that action at a Thursday meeting.
Instead, commissioners approved a motion to start creating new medical and recreational marijuana regulations, which they said gives them the ability to respond to potential judicial rulings on vaping.
"We have to see whether the stay is granted or not," CCC Chairman Steve Hoffman told reporters after the vote. "If the stay is granted, nothing will change about the governor's order. If the stay is not granted, the executive director has the prerogative to take administrative action. My preference would have been to be explicit about what that administrative action will be."
Those regulations would be limited to ingredients, labeling, testing, sourcing, storage and both manufacturing and consumption processes of marijuana vaping products.
The CCC also agreed in its motion that the commission's executive director, Shawn Collins, has authority to take administrative action limiting sales of any marijuana products to ensure public safety.
Collins said during the meeting that he is "leaning toward" a quarantine of oil-based cartridges if the ban is indeed lifted. Vaporized flower products are not a target, Collins said, because they do not appear to be involved in the cases of lung illness.
Neither he nor the commission would commit to a clear timeline of when that would go into effect.
"If [the ban] were to be lifted, I would have every intention of deploying any tool that we have to ensure that product that may not be safe for consumers or patients does not reach the marketplace," Collins said during the meeting.
The motion passed unanimously, and although he supported the outcome, Hoffman said he would have preferred the commission take a "more definitive action" and lay out its plan on how new regulations will be approached.
Commission members, though, said they wanted to wait until more evidence is available about what role legal, medical products play in the lung illness outbreak.
"If we are going to make a decision, particularly if that decision limits availability of regulated products, we need to be clear about the fact that that may send people to the illicit market," Commissioner Shaleen Title told reporters. "The CDC has noted that the majority of cases at this point are linked to illicit THC products and that illicit THC products play a major role in this outbreak. It is important for us to consider that and to make our decisions understanding that any action is going to have consequences."
Baker declared a public health emergency on September 24 and ordered all vaping and e-cigarette products taken off shelves for four months amid a growing outbreak of vaping-related lung illnesses.
Three Massachusetts deaths linked to the disease have been reported so far by state officials.
Baker's decision set off a flurry of protests and legal challenges. Under court orders in late October, the administration reissued the first-in-the-nation ban as emergency regulations lasting until Dec. 24, a three-month span.
Frank Shaw, a 66-year-old medical marijuana user who was one of the parties that intervened in the case, said after the commission's vote that the ban has been "devastating" to patients who depend on vaping cannabis products to relieve pain.
"The longer it's going to take for this ban to be in place, it's going to harm the patients," Shaw told reporters at Thursday's meeting. "You've got to remember that medical patients are not recreational consumers."
Both state lawmakers and the federal government are eyeing a crackdown on flavored vape products.
House Speaker Robert DeLeo said last month that he wants lawmakers to "take a more comprehensive look beyond just a plain vaping ban," hoping to curb youth tobacco use and vaping by banning flavored tobacco.
USA Today reported Wednesday that a federal ban on flavors is expected "within days."
