Cannabis in Massachusetts: What Is Legal and What Isn't

In the November, 2016 election, voters in the Commonwealth of Massachusetts approved the sale of recreational marijuana in the state. The understanding was that retail stores would begin to sell marijuana at the beginning of 2018. But, nothing is ever that easy.

On Friday, December 30, 2016, Governor Charlie Baker, without so much as a public hearing or legislative debate, signed a bill postponing the opening of retail stores until at least mid-2018. The delay intends to “give lawmakers more time to consider issues that were not addressed in the ballot question.”

Some 53% of Massachusetts voters approved the legislation that would permit growing and using marijuana. The legislation required licensing, taxation, and regulations to the farming, harvesting, and sale. And, it laid out penalties to violations of the regulations. Gov. Baker is saying they do not have time to implement the infrastructure necessary.

With the help of Massachusetts Law, you can consider what is and is not legal regarding marijuana.

Just what is legal?

• Any adult over 21 can possess up to 1 ounce of marijuana outside the home.
• Adults over 21 may possess up to 10 ounces inside the home.
• Any one individual may grow up to six marijuana plants for personal use or up to 12 plants per household if more than one adult live on the premises.
• Any adult may give up to one ounce of marijuana to another adult – but not for money.

What isn't legal?

• Citizens cannot possess, purchase, grow, or use marijuana unless they are 21 or older unless they possess a valid medical marijuana permit.
• No one can give marijuana away to anyone under 21.
• Recreational marijuana cannot be sold in any form without a retail license issued by the Massachusetts Cannabis Control Commission.
• Citizens may grow marijuana at home if discrete and secure. That is, plants cannot be visible from the street or any public area, and they must be cultivated where there is a security device.
• Landlords may prohibit tenants from growing, smoking, or vaping marijuana in their residence or on their premises.
• Landlords may not prohibit consumption of marijuana by means other than smoking.
• The law prohibits using marijuana in any public space and in any place where tobacco is banned.
• Possession of marijuana is illegal on school grounds.
• Citizens cannot keep open containers or partially consumed packages of marijuana in a motor vehicle unless it is in a locked glove compartment or vehicle trunk.
• This legislation does not change the laws against operating cars or other vehicles under the influence.
• Deferring to federal law, citizens may not move marijuana across state lines, send it through the U.S. mail, or use it on federal property.

Regarding gifts:

 The Massachusetts law does permit unlicensed people to give or gift an ounce (or less) of marijuana to another person. They may not sell it. They also may not delay payment or disguise the payment. They may not exchange the marijuana “gift” for another gift or something of equivalent value. Such fake transactions will be handled as criminal.

Regarding Medical Marijuana

 Massachusetts continues to permit the use of medical marijuana for specific medical conditions:

• Amyotrophic Lateral Sclerosis (ALS – Lou Gehrig’s Disease)
• Cancer
• Crohn’s Disease
• Glaucoma
• HIV and AIDS
• Hepatitis C
• Multiple Sclerosis
• Parkinson’s Disease
• Other conditions on written request by qualifying physician.

Patients may purchase up to 10 ounces every two months at one of 35 registered and licensed dispensaries state-wide.  The amount is understood to be reasonable for their needs. Regulations allow individual patients to designate a "personal caregiver" at least 21 years old to cultivate marijuana for them if they are unable to access a state-authorized dispensary or if they can verify "financial hardship."

Regarding the future

According to the Insurance Journal, “[Massachusetts] Legislative leaders have made clear they are not through with making changes to the voter-approved recreational marijuana initiative, but it remains to be seen whether future action amounts to an overhaul of or a mere tinkering with the new law.”. Cannabis advocates feel threatened by the move, worried that it will allow time to take the legislation apart. But, the Governor insists the delay intends only to allow the state to build the necessary administrative infrastructure.

The delay also allows for changes in the current federal policy and practice towards state legalization. In a 2013, Deputy Attorney James Cole issued a memo acknowledging that state and local officials enforce most drug laws. It continued to say that, if local enforcement did not threaten federal priorities like the opiate plague, Washington would leave it to the local authorities.

There is concern that President Trump’s polices, in a rush to unwind President’s Obama practices, would reverse this prosecutorial discretion. However, Christopher Ingraham writes in The Washington Post, "some congressional observers are skeptical that there will be any appetite in a new Trump admininstration for quashing marijuana reform. 'Go against millions of supporters, against states' rights, against where the public is?' said Rep. Earl Blumenauer (D. -Ore.) in an interview. 'It would be the beginning of tremendous problems for the Trump administration that they don't need."

So, Massachusetts citizens have the right to possess, consume, and grow marijuana. But, they are temporarily denied the ability to purchase the product from licensed retail cannabis shops. For the law abiding, that effectively puts a freeze on the November, 2016 initiative.