hill country observerThe independent newspaper of eastern New York, southwestern Vermont and the Berkshires


News & Issues October 2018


Out of the shadows

Mass. retailers get set for legal marijuana sales, raising questions for N.Y., Vermont

Theory Wellness opened the Berkshires’ first medical marijuana dispensary, above, in Great Barrington two years ago. Now it’s one of the first four retailers in Berkshire County that are expected to begin selling to anyone over 21 after the state’s voters backed full marijuana legalization. Scott Langley photo


Contributing writer


Over the next several weeks, the first retail stores around the Berkshires are expected to receive state licenses to begin selling marijuana legally to anyone over 21.

The start of retail sales – in four stores from Great Barrington to Williamstown -- represents a major step in implementing the policy of marijuana legalization that Massachusetts voters approved in a statewide referendum two years ago, toppling a decades-old system of prohibition.
But the changes under way in Massachusetts also pose new challenges for lawmakers and citizens in neighboring New York and Vermont, which recently have been reconsidering their own laws and views regarding marijuana.

Vermont, which has sanctioned medical use of marijuana since 2004, made it legal for all adult users earlier this year. But the state has no provision for legal sales. For those who don’t have a certified medical need, the only lawful way to obtain marijuana in Vermont is by growing it or receiving a no-strings gift from someone else

In New York, possession of any amount of marijuana remains illegal for everyone but approved medical patients. But earlier this year, a state commission appointed by Gov. Andrew Cuomo backed the idea of broader legalization, and a separate working group of state officials is holding meetings around the state this fall to gather public input for a possible rewrite of the state’s marijuana laws.

Massachusetts now is among eight states around the country that have embraced legal, taxed and regulated sale of marijuana to any adult who wants to buy it, while 20 additional states allow its use for medical purposes.

Since passage of the 2016 ballot initiative, it’s been legal in Massachusetts for any adult to possess up to an ounce of marijuana in public (except in schools) – and up to 10 ounces at home.

But selling marijuana and related products requires a state license, and setting up a legal marketplace has taken time. The state’s new Cannabis Control Commission, a regulatory body created by the 2016 initiative, had a target date of July 1 to start retail sales. But so far it’s approved only four licenses, in the eastern and central parts of the state.

In Berkshire County, the state is processing completed applications for four retail licenses – for stores in Williamstown, Pittsfield and Great Barrington – with final approvals expected in the next few weeks. More businesses have announced proposals for stores, and local businesses also have applied for licenses for cultivation, product manufacturing and transporting of cannabis.


Medical, recreational markets
Massachusetts requires prospective cannabis businesses to identify a site in a town that has approved zoning for such businesses, work out a host community agreement with the town, then apply for state licenses. The process gives priority to companies that are already operating medical marijuana dispensaries, which the state has allowed since 2013.

Theory Wellness, which opened the Berkshires’ first medical marijuana dispensary in Great Barrington in 2016, now wants to add recreational sales.


Teva Smith shows some of the offerings at Theory Wellness, a medical marijuana dispensary in Great Barrington, Mass., that expects to offer recreational sales soon.


Brandon Pollock, the company’s chief executive, said last month that he hopes the local retail shop will be able to open sometime in November, once its state license is approved.
“We’re not privy to where it is in the application process, but it should be coming soon,” Pollock said.

He called the licensing process “fairly straightforward,” made easier because the company already has a medical marijuana license. Theory Wellness also runs a medical marijuana dispensary in the eastern Massachusetts town of Bridgewater.

Two-thirds of Great Barrington voters supported recreational marijuana sales in 2016, and the town “has been a pleasure to work with,” Pollock said.

“There’s quite a bit of interest and excitement for folks to get into business,” he said.
Theory Wellness will continue its medical marijuana facility.

“We’ll have a separate sales and consultation area for medical patients,” Pollock said. “It shouldn’t affect the retail part.”

Pollock explained that to join the medical marijuana program, a patient must be certified by a physician and pay a state registration fee, at a total annual cost of $250. But this process still will be worthwhile for medical marijuana patients, Pollock said, because medical marijuana products are exempt from the state’s 20 percent tax on recreational marijuana.

“If you use it daily or several times a week and spend more than $1,000 a year, it’s cost effective,” he said.

In addition, “the retail side has strict limits on how strong products can be,” Pollock said, but these limits don’t apply to medical products. Those who want cannabis for pain relief or to overcome an opioid addiction may need the higher potency, he said.

Theory Wellness has a cannabis cultivation and manufacturing facility in Bridgewater to supply its dispensaries, and Pollock said it’s expanding to meet recreational demand. But just how many customers will want recreational marijuana “is a very large unknown,” he added.

When sales finally start, “likely there’ll be some restrictions on how much people can purchase at first,” below the state limit, “to ensure that everyone gets some,” he said. “My guess is that there’ll be some shortages at the beginning in general.”

The Great Barrington dispensary, in the commercial area along Route 7 north of downtown, “has been going better than we projected,” Pollock said.

“We’ve helped improve the quality of life for hundreds, if not thousands, of Berkshire residents,” he said. “We look forward to the future when we can provide safe access to anyone 21 and older.”


A regulated marketplace
At the other end of Berkshire County, Silver Therapeutics has applied to open both a retail shop and a medical marijuana dispensary in Williamstown. The two operations will have separate licenses, said Brendan McKee, the company’s chief financial officer.

Silver Therapeutics will open the retail shop first, because under state law, dispensaries can sell only what they grow and produce themselves, McKee said. Retailers can buy from any licensed source. The company has a growing facility in the town of Orange, east of Greenfield, but it’s not in operation yet, he said.

Silver Therapeutics also has applied to set up dispensaries and retail outlets in Greenfield and at its facility in Orange, McKee said. The state allows marijuana businesses to have up to three retail outlets.

“We’re the only group with three towns lined up,” McKee said.
The Williamstown store, in a shopping plaza on Route 2, should be completed this month, McKee said.

“We hope to have our license in mid-October and open in November,” he said. “We’d like to be there before the year ends, in any case.”

Despite the licensing delays, “I give the state a lot of credit,” McKee said. “They’re being incredibly thorough and setting a good precedent.”

McKee is working in partnership with the company’s chief executive, Joshua Silver, and chief operating officer, Josh Ferranto, who will operate the growing facility. As part of the application process, “all of us have been incredibly engaged in community outreach to demonstrate that we care,” McKee said.

“I’m a medical marijuana patient myself, and I do this as an opportunity to help people,” McKee said. “People like that we’re involved.”

Like Pollock, McKee encouraged people who want cannabis products for health issues to go through the state’s medical marijuana program rather than just buying it at retail stores.
“If you spend more than $1,000 a year, it’ll be worth it to you to get your patient card,” he said.
Anticipating that the supply of legal marijuana may not be enough at first to meet the demand of the recreational market, “the state is doing everything it can to ensure that patients have access to medical marijuana,” McKee said.

The stock of products such as edibles, concentrates and distillates “should be OK,” he said. “Flower may be a little harder to obtain.”

McKee said the partners chose a location in Williamstown because it was equally convenient for all of them. (Silver is a lawyer in Saratoga Springs.)


Watching revenue flow out
Vermont legislators passed a law last year allowing recreational consumption of marijuana. Anyone in the state may now legally possess up to an ounce of marijuana.

But the new law makes no provision for legal sales. Republican Gov. Phil Scott has made it clear he opposes allowing a taxed and regulated cannabis market until the state can develop a roadside test for determining whether pot-consuming drivers are impaired.

State Sen. Richard W. Sears Jr., D-Bennington, who has supported creation of a regulated marijuana market in Vermont, said two versions of legislation passed by the state House last year included roadside testing.

But the Senate’s bills didn’t, he said, because the only roadside tests available, which look for traces of cannabis in saliva, can’t reliably show whether a driver is impaired. Traces of THC, the active ingredient in marijuana, can remain in the bloodstream for weeks after its effects have worn off.

“We just feel that without an adequate test like the Breathalyzer, we’re better off with drug recognition experts and the A-Ride program,” which trains law enforcement officers to recognize driving impairment from substances other than alcohol, Sears said.

“I think the governor is setting us up for a big showdown” in the next legislative session, Sears said. “This will be a huge issue to mount.”

Advocates of a taxed and regulated market say Vermont could reap millions of dollars in marijuana taxes -- money that could soon be going to Massachusetts and other states where retail sales have been legalized. Vermont has no law barring the state’s residents from buying their one-ounce possession limit of marijuana in other states and bringing it home, Sears said, and Massachusetts has no residency requirement for sales.

That raises the possibility of people in southern Vermont importing marijuana from Massachusetts while those in the northern part bring it home from Maine, where a retail market is expected to open next spring.

“I’m not sure Vermont will set up a border patrol to see if people bring in more” than their one-ounce limit, Sears said.


Federal prohibition remains
Canada also will begin to allow legal sales of marijuana this month, and Vermonters will be able to buy it there. But it remains a felony under federal law to take marijuana across national borders and between states, and U.S. Customs and Border Patrol officials have said they’ll enforce the law along the Canadian border.

Although other states are forging ahead with retail marijuana sales, Sears said he’s not sure Vermont will have such a system anytime soon.

“My judgment is that it’s not a done deal with tax-and-regulate in Vermont, not with the governor the way he is,” Sears said. “That’s assuming he’s re-elected.”

Scott’s Democratic challenger in the November governor’s race, Christine Hallquist, has said she favors development of a state-regulated retail marijuana market in Vermont.

The composition of the state House, which has resisted the idea of a state-sanctioned marijuana market, also might change as a result of the November election, Sears noted.

Although Vermont has no provision for legal marijuana sales for now, the advent of legal possession prompted some businesses to try to get around the prohibition on sales by “gifting” cannabis products in exchange for a delivery fee -- or as a bonus for purchasing a low-value item such as a T-shirt or sticker at a high price. State Attorney General T.J. Donovan quickly ruled that such transactions qualify as sales and therefore remain illegal. Other entrepreneurs have been working to develop bring-your-own-weed private clubs or cannabis-friendly lodgings.

“Hopefully, under a regulated market, the state would have enough growers to supply everyone,” Sears said.

That should include small growers and artisan product manufacturers, he added.


New York debates changes
In New York, a multi-agency study commission appointed by Gov. Andrew Cuomo issued a report in June that concluded the positive effects of a regulated marijuana market outweighed the potential negative effects. The state has had a medical marijuana program since 2014.
“It has become less a question of whether to legalize but how to do so responsibly,” the governor’s study commission wrote.

The National Survey on Drug Use and Health estimates that one in 10 New Yorkers use marijuana each month, the report said. In May, a Quinnipiac University poll found 63 percent of state voters supported legalizing regulated use by adults.

“A regulated market program enjoys broad support and would have significant health, social justice, and economic benefits,” the report said.

New York decriminalized possession of small amounts of marijuana in 1977, but larger amounts can land people in the criminal justice system, and the state logged more than 800,000 arrests for possession over the last 20 years, the report said. It noted that low-income minority communities have suffered the most from criminal prosecution of marijuana offenses.
The report also acknowledged that “the impact of legalization in surrounding states has accelerated the need” for New York to consider legalization.

Another reason is potential tax revenue -- between $278 million and $678 million annually, the report estimated, depending on low and high estimates of per-ounce cost and tax rates.
A University of Oregon study found that people in states without a legal marijuana market are more likely to go to states that do rather than buy on the in-state black market, so a substantial amount of money is likely to flow out of state once other states’ markets open.

Rather than leaving New Yorkers to go out of state or buy on the black market, the commission’s report recommended a legal, regulated market with “incorporation of harm-reduction strategies” to protect public health, provide consumer protection, and ensure public safety. The commission was led by state Health Commissioner Howard Zucker.


Prohibited for now
Unless and until state lawmakers act to create a legal market, however, marijuana remains illegal in New York.

Possession of up to 25 grams (or about 0.8 ounces) is considered a civil violation, but larger amounts could result in a criminal charge with a potential jail time. And selling even an ounce of marijuana in New York could result in charges carrying a potential prison term of 1 to 4 years.
With retail stores nearly set to open in Berkshire County, law enforcement officials in the border counties of New York don’t appear to have any plans to change their handling of marijuana cases.

“I don’t think we’re going to be changing anything at all,” said Lt. Wayne Lopez, the public information officer for the Columbia County Sheriff Office.

Rensselaer County Sheriff Patrick Russo said people need to remember that marijuana “is not legal in New York.”

“If you go to Massachusetts and come back with marijuana, you could be arrested and prosecuted in New York,” Russo said.

Russo said his department probably won’t add patrols along the state line, but he said officers “would be more vigilant of the possibility of people coming in with marijuana or driving under the influence.”

John Desso, a spokesman for Rensselaer County District Attorney Joel Abelove, said the prosecutor wasn’t comfortable commenting on the issue for now.

Based on his commission’s report, Cuomo has named a working group to craft legislation that would create a regulatory framework for recreational marijuana sales. The group held the second of 15 planned “listening sessions” on Sept. 6 in Queensbury.

About 50 people spoke at the forum at the SUNY Adirondack campus, with most in favor of legalizing recreational use and sales. Supporters cited legalization’s economic development benefits, a need to give medical marijuana patients the opportunity to grow their own, racial disparity in the enforcement of current drug laws, and the possibility that legal sales would create a revenue stream for drug abuse prevention efforts and community investment.

The commission’s report noted that marijuana use is not without risks. It cited a risk of addiction of about 1 in 10 among adult users; harmful impacts on attention, memory, and learning, especially in youngsters; and a possible connection to low birth weights in mothers who smoke during pregnancy. The report said that inhaling marijuana smoke can damage the lungs just as tobacco smoke does – and that stoned people can do stupid and sometimes dangerous things.
However, “the negative health consequences of marijuana are lower than those associated with alcohol, tobacco, and illicit drugs including heroin and cocaine,” the report concluded.
Indeed, the federal Centers for Disease Control says that 54,199 Americans died of alcohol-related illnesses in 2015, while the federal Drug Enforcement Administration has never reported a death from marijuana overdose.