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Memo Challenges DPH Authority In Vape Sales Ban Case

Vape dispensers used for legal recreational cannabis rest on a shelf at New England Treatment Access medical marijuana dispensary, in Northampton, Mass. (Steven Senne/AP)
Vape dispensers used for legal recreational cannabis rest on a shelf at New England Treatment Access medical marijuana dispensary, in Northampton, Mass. (Steven Senne/AP)

The group representing medical marijuana patients who intervened in the challenge to Gov. Charlie Baker's temporary vape sales ban filed a memo Thursday arguing that the Cannabis Control Commission, not the Department of Public Health, is the only state agency that can regulate marijuana products.

The group's premise is that the 2017 law that created the CCC "transferred authority to regulate all legal marijuana" from DPH to the CCC and that the Legislature was clear in its law that the CCC was to be the lead regulatory body.

"DPH now purports to have the authority to ban the vaporization of all marijuana products based on an alleged public health emergency. With the stroke of its pen, DPH purports to abrogate the Legislative mandate that marijuana vaping oils be legal and regulated by the CCC," the group wrote in its filing. "This it cannot do."

DPH effectuated Baker's ban on all in-state vaping product sales, which has been whittled down by a judge amid legal challenges, but medical marijuana patients have complained that it leaves them without a palatable alternative method to ingest their medicine.

The group, which is represented in part by former assistant attorney general and legalization campaign manager Will Luzier, is asking a Superior Court judge to strike down the ban as it relates to marijuana.

To put the ban in place, Baker declared a public health emergency which gave the commissioner of DPH the legal authority to "take such action and incur such liabilities as he may deem necessary to assure the maintenance of public health and the prevention of disease."

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