December 6, 2016

By Email:

Margret Cooke, Esq., General Counsel

Office of General Counsel

Department of Public Health

250 Washington Street

Boston, MA 02108

Re:Proposed Regulations Regarding the Department of Public Health’s (“DPH”) Medical Use of Marijuana Program

Dear Attorney Cooke:

Medical Marijuana of Massachusetts, Inc. (“MMM”) is a non-profit organization that has received Provisional Certificates of Registration (“PCoR”) from DPH to operate two (2) Registered Marijuana Dispensaries (“RMDs”). MMM submits this Testimony to respectfully request that DPH’s proposed revision of 105 CMR § 725.000 (“Proposed Regulations”) be modified to not delay MMM from making marijuana for medical use available to the patients seeking this form of treatment. MMM appreciates the opportunity to submit this Testimony regarding the Proposed Regulations.

The current regulations provide that an RMD may only purchase seeds to begin cultivating marijuana for medical use. 105 CMR §725.100(N)(2).

The Proposed Regulations would allow an RMD to cultivate marijuana for medical use by acquiring “cuttings or genetic plant material that are not flowering and are no taller than 8 inches and no wider than 8 inches tall”. However, an RMD may only avail itself of this expanded provision if the “cuttings or genetic plant material” is “acquired within 90 days of receiving a final certificate of registration.”

  1. Permitting an RMD to commence cultivation from such “cuttings or genetic plant material” (such as a clone) provides patients with quality Finished Medical Marijuana Products from a clone that has been tested for an intended balanced make-up of CDB and THC.
  2. Growing from seeds does not afford the cultivator to be assured that 100% of the crop being grown is made-up of the desired CDB to TCH ratios.
  3. When the initial crop is grown from seed rather than from clones, the cycle time to have product available to the patients would increase by up to five (5) months, resulting in a significant delay of making product available to the patient.
  4. The proposed expansion would greatly benefit patients of RMDs who will receive a final certificate of registration after the Proposed Regulations become finalized.
  5. With respect to all RMDs who are currently in the application process and have received a provisional certificate of registration, it is likely that they will receive a final certificate of registration before the Proposed Regulations are finalized and as a result will not be able to grow from clones.
  6. By allowing all the RMDs to grow from clones will allow the patients access to marijuana for medical use that is more reliable in terms of quality but also allows product to be available in a timelier manner.

Based on DPH’s September 14, 2016 Memorandum to Commissioner Bharel and the Public Health Council, it appears as though the Proposed Regulations will not be finalized until Spring, 2017. This would result in the following scenario:

Example: If an RMD receives its final certificate of registration on March 1, 2017 (“New RMD”) and the Proposed Regulations are finalized June 15, 2017, then the New RMD would not be able to take advantage of the expansion on using clones, as the date the Proposed Regulations are finalized would be more than 90 days after the New RMD received its final certificate of registration.
However, if another RMD (“Subsequent New RMD”) receives its final certificate of registration 3 weeks after the New RMD who received their COR on March 1, 2017, then the Subsequent New RMD would beable to take advantage of this expanded provision.

This results in a disparate treatment to the RMDs who have been in the process longer than the Subsequent New RMD, and this seems as though it was an unintended consequence of theproposed regulations.

To avoid this result, MMM proposes the following modification to the Proposed Regulation 105 CMR 725.100(N)(2) (with suggested new language highlighted in double underline):

A RMD may not acquire marijuana or marijuana plants except through the cultivation of marijuana by that RMD or another RMD as specified in 105 CMR 725.105(B)(2), provided however that a RMD may acquire marijuana seeds, cuttings or genetic plant material that are not flowering and are no taller than 8 inches wide and no wider than 8 inches tall. Cuttings or genetic plant material may only be acquired within 90 days of receiving a final certificate of registration, except (1) as authorized under 105 CMR 725.105(B)(2); and (2) any RMD that received a final certificate of registration before [insert the date that the Proposed Regulations will be finalized] may acquire such cuttings or genetic plant material within 90 days after [insert the date that the Proposed Regulations will be finalized].

The above-suggested modification would also make the Proposed Regulations more closely in alignment with Ballot 4’s Section 94G, Section 4(c)(5), which specifically permits a recreational marijuana establishment to acquire “marijuana seeds, clones, cuttings, plants or plant tissue from other marijuana establishments or from medical marijuana treatment centers.” There is no public policy rationale that could support a position that a recreational marijuana establishment may acquire clones, cuttings, plants or plant tissues from an RMD[1], but an RMD may not similarly acquire clones, cuttings, plants or plant tissue.

MMM appreciates the opportunity to submit this Testimony.

Respectfully,

Jonathan H. Herlihy

President

Medical Marijuana of MassachusettsPO Box 1650, 9 Collins Avenue, Plymouth, MA 02362 Page 1

[1] The current marijuana for medical use program regulations prohibit an RMD’s sale of clones, cuttings, plants or plant tissue to any third party except as otherwise permitted pursuant to 105 CMR 725.105(B)(2).