UPDATE: Court lifts vape ban for medical pot users

CNHI file photoIf state regulators don't take any action within a week, a judge has ruled that pot stores will be allowed to resume sales of vaping products to medical marijuana patients beginning next Tuesday.

BOSTON — A judge has lifted the state's ban on marijuana-infused vaping products for medical patients, ruling that the state Department of Public Health overstepped its authority.

On Tuesday, Suffolk County Superior Court Judge Douglas Wilkins ruled the department didn't have the authority to impose emergency regulations banning the sale of medical marijuana vaping products, which are regulated by the Cannabis Control Commission.

His decision gives the commission a week to consider emergency rules outlawing sales of the products.

If state regulators don't take any action, Wilkins ruled, pot stores will be allowed to resume sales of vaping products to medical marijuana patients beginning next Tuesday.

Gov. Charlie Baker declared a public health emergency and imposed a ban on all vaping products on Sept. 24 in response to an outbreak of lung disease that has killed 37 people and sickened more than 1,800 nationwide. The ban was challenged in court, and Baker was ordered to file emergency regulations last week to keep the temporary restrictions in place.

But Wilkins noted the DPH regulations effectively "commandeer" the authority of the Cannabis Control Commission, which is a separate state agency.

"The Legislature did not want DPH to regulate medical marijuana, but the emergency regulations do just that," he wrote in a 20-page ruling. "The conflict with the legislative scheme could not be clearer."

The ruling doesn't affect recreational marijuana vapers, and Baker's ban on nicotine vaping products remains in effect, at least until Dec. 24, under previous court rulings.

Wilkins' ruling comes in response to a complaint by four medical marijuana patients, including a 66-year-old Ipswich man, who joined a lawsuit filed by the Vapor Technology Association on behalf of stores seeking to overturn Baker's four-month ban on sales of the products.

The patients argued that the ban, which covers all vaping products, blocked access to their medication, forcing them to turn to the black-market or other sources.

"We believe that the judge made the correct decision," said Will Luzier, a medical marijuana patient and former manager for the 2016 ballot campaign to legalize recreational marijuana. "We're pleased that medical marijuana patients will now be able to get their medicine."

Wilkins specifically noted the situation facing patients, such as Frank Shaw of Ipswich, who uses medical marijuana vaping products to relieve pain in his feet from neuropathy, back pain and insomnia.

"The longer the ban remains in effect, the more patients will face undesirable choices, including opioid use, black-market purchases or suffering severe pain," he wrote.

Roughly 60,000 patients are certified to buy medical marijuana to treat pain, cancer symptoms and other conditions from more than 50 state-licensed dispensaries.

A spokeswoman for the Cannabis Control Commission said the agency was still reviewing the ruling and declined to comment. The commission's next regular meeting is Thursday.

Baker spokesman Terry MacCormack noted that the ruling "has no immediate effect" on the governor's ban and said the administration is pursuing an appeal before the state's highest court.

"With today’s ruling, the vaping ban remains in place for adult-use marijuana and nicotine products, and the administration is in the process of working with the attorney general’s office to appeal this ruling to the Supreme Judicial Court," he said in a statement.

Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at cwade@cnhi.com


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