What A Judge's Ruling On Vaping Medical Marijuana Could Mean For Recreational Customers

After a judge ruled the state's ban on the sale of vaping products is "likely invalid" for medical marijuana patients, it's up to the Cannabis Control Commission to decide if the products will remain off the market.

Superior Court Judge Douglas Wilkins ruled Tuesday that the CCC — not Gov. Charlie Baker or the Department of Public Health — has the "exclusive authority" to put restrictions on medical marijuana. State lawmakers clearly gave the CCC oversight of medical marijuana, Wilkins wrote.

Per the ruling, the ban on marijuana vaping products for medical patients will end Nov. 12, unless the CCC votes to keep it in place.

The commission could take up the issue when it meets Thursday — its first scheduled meeting since the ruling. The CCC has not confirmed whether it will discuss the ban.

A spokeswoman for the agency said the commission is reviewing the ruling and has no further comment.

Baker's office has said it plans to appeal the ruling.

Wilkins' ruling doesn't apply to marijuana vapes for recreational customers or nicotine vapes. But his reasoning suggests that the CCC may also have exclusive authority over recreational marijuana, including the vaping products.

That was welcome news to many in the cannabis industry.

"I'm actually quite excited that the judge ruled to put the decision in the hands of the Cannabis Control Commission, as they are the regulatory body for both medical and adult-use cannabis in the Commonwealth," said Dr. Marion McNabb, CEO of Cannabis Community Care and Research Network, a marijuana research and advocacy group.

"It would be a win for the industry here to have medical vapes back on the market," McNabb added.

Her organization sent a letter to the CCC Wednesday calling on the agency to lift the ban on cannabis vapes across the board. It's unclear whether the CCC will take up the issue of recreational marijuana as it decides what to do on the medical side.

Judge Wilkins' ruling focused specifically on medical marijuana because a group of patients intervened in a challenge to the state ban.

But a challenge to the ban on the recreational side could be a tougher argument to make, said attorney Will Luzier, who helped lead the effort to legalize marijuana in Massachusetts.

"There might not be as much evidence that they would suffer from that irreparable harm that's the requirement of an injunction," said Luzier, who was part of the group that challenged the ban on vapes for medical patients.

With the medical marijuana challenge, the irreparable harm was clearer: Patients could not access their medicine with the ban in place, Luzier said.

Patients testified in court that the ban would force medical marijuana patients to turn to the illicit market, switch to opiates or travel to other states, Luzier said.

In his ruling, Judge Wilkins accepted those arguments.

"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.

Patients could, of course, consume marijuana in other ways. But Luzier said there was testimony that edibles aren't fast-acting enough to alleviate pain and that smoking releases harmful byproducts.

The recreational marijuana industry could try to argue that the vape ban hurts businesses. But that argument didn't work out so well for the nicotine vaping industry. In a previous ruling, Judge Wilkins said lifting the ban on selling nicotine vape products "would contravene the public interest."

In September, Baker banned the sale of all vaping products in Massachusetts, after a spate of mysterious vaping-related lung illnesses and some deaths across the country and in the state. The ban is scheduled to last until Jan. 25, 2020.