The Legislature sent its rewrite of the voter-approved legal marijuana bill, with a higher tax rate and less power for voters, to the governor on Thursday, 255 days after about 1.8 million voters put the law on the books.
House and Senate negotiators had planned to get a bill to Gov. Charlie Baker by June 30, but their talks dragged on this month amid disagreements over tax rates, local control and other issues. Both branches accepted the conference committee report (H 3818) Wednesday and on Thursday officially enacted it.
“You have heard that this is a combination of three bills. It is not,” Sen. Patricia Jehlen, the lead Senate conferee, said on the floor. “It is a combination of law passed by the voters in two different referenda, the Senate bill, the House bill and the regulations issued by the Department of Public Health … so this was not just difficult philosophically but it was very difficult to draft.”
The Senate enacted the bill on a 32-6 recorded vote, with Democrat Sen. John Keenan joining Republicans Bruce Tarr, Vinny deMacedo, Donald Humason, Patrick O’Connor and Ryan Fattman in voting no.
The next decisions now rest with Baker, who opposed Question 4 legalizing recreational marijuana but has expressed a willingness to get on with the business of implementing the legal marijuana market voters indicated they want. It’s unclear whether he might have any additional recommendations that could be proposed in the form of amendments that would further delay the implementation of the law.
The governor has said he wants to see the updates in place soon so the regulatory structure can be developed, and has said the biggest preference in the setting of a tax rate is that it be sufficient to cover the costs of marijuana regulation. He has also pointed to local control and restrictions around packaging and potency of edible products as priority areas for him in the legislation.
Ultimately, conferees settled on a 10.75 percent excise tax on retail marijuana sales, on top of the state’s 6.25 percent sales tax. Cities and towns would be able to tack up to 3 percent more on each sale within their borders, and medical marijuana will remain untaxed. The compromise raises the maximum tax rate on retail pot sales to 20 percent, up from 12 percent in the existing ballot law.
The bill also allows cities and towns that supported the 2016 legalization ballot initiative to ban marijuana stores only if a majority of voters approve, while letting local governing boards ban the shops in cities and towns that voted against Question 4 in November 2016.
That provision, Minority Leader Bruce Tarr said, “has the potential to set a very, very dangerous precedent.”
“It clearly makes this bill subject to a colorable constitutional challenge,” Tarr said, explaining that the bill could be open to a challenge based on the idea of equal protection under the law. He added, “If this measure is adopted as presented to us, it would create two classes of communities in Massachusetts – some in which voters have the right to address a particular issue of the restriction of the sale of marijuana, and for others … that decision would be left to local officials.”
Sen. William Brownsberger, who co-chairs the Judiciary Committee and served on the marijuana conference committee, said the suggestion that the local control compromise is unconstitutional is “nonsense.”
“It is a novel approach. It’s a novel approach to rely on the vote of a community to identify their preferences, but if you stand back from it for a moment it’s an absolutely totally commonsensical approach,” Brownsberger said. He added, “The equal protection clause is designed, first of all, to protect vulnerable classes — race, sex, gender, creed, national origin — this is not a discrimination based on any one of those protected classes and therefore it is not subject to strict scrutiny by the courts.”
Baker now has 10 days to review the bill and decide whether to sign it, amend it or return it with a veto. If Baker takes the 10 days he is entitled to, the bill could be signed as late as July 30, leaving just one day before the bill’s first deadline.
Under the bill, the 25 members of a Cannabis Advisory Board, a panel that will study and make recommendations on regulating cannabis, will need to be appointed by Aug. 1, a tight deadline in the already-delayed marijuana industry rollout.