The Cannabis Control Commission of Massachusetts (CCC) met for a regularly-scheduled Public Meeting on Thursday, March 13th, which we attended on behalf of the Institute of Cannabis Science. Over more than six hours, the discussion that most caught our attention concerned the vote to extend the Social Equity Exclusivity Period by 12 months after an evasive update from the Delivery Exclusivity Working Group. The member of the CCC’s Office of General Counsel who represented the Working Group was repeatedly challenged by Commissioner Kimberly Roy, who suggested that the CCC failed to collect and analyze data as mandated by statute and raised the possibility of litigation. 

The statute at the heart of the argument

The discussion between the Associate General Counsel and Commissioner Roy revolved around 935 CMR 500.050(11)(f), the section of the Code of Massachusetts Regulations which limits the delivery of marijuana to businesses owned by Economic Empowerment or Social Equity applicants. It defines an “exclusivity period” of 36 months from the date the first Delivery Operator commences operations.

The exclusivity period of 36 months prevents most cannabis businesses in Mass from offering delivery services. Many retailers are in suboptimal locations due to zoning restrictions and the expense of renting long before commencing business, so this restriction is significant. The first delivery license was approved for “Freshly Baked” in May 2021, and the exclusivity period’s conclusion is approaching on April 1st, 2025. 

Section 1 of 935 CMR 500.050(11)(f) states, “The Commission shall develop criteria for evaluating whether the goals of the exclusivity period are met.” Section 2 outlines a process of collecting evidence to inform the evaluation, beginning, “The Commission shall collect and report on data measuring the criteria throughout the exclusivity period.” Much of the contentious discussion concerned the interpretation of what it means to “collect and report” and the word “throughout.”

Section 3 of 935 CMR 500.050(11)(f) allows the Commission one opportunity to extend the exclusivity period by one year without explanation. Further extensions are prohibited without affirmative findings from the processes described in Sections 1 and 2.

Presentation of the Delivery Extension Working Group

Deputy General Counsel Michael Baker represented the Delivery Exclusivity Working Group on Thursday. He told us that it started in April 4th, 2024, led by Commissioner Concepción and Director of Equity Programming and Community Outreach Silea Williams. Silea Williams was never mentioned again in Thursday’s meeting.

Mr. Baker’s presentation covered the sections of 935 CMR 500.050(11)(f) we described above. When describing the provisions in Section 2, he said, “Regulations call for the review to begin at least eight months prior to the expiration of the delivery exclusivity period. And as I showed you on my first slide here, that group was established in April of 2024, so about one year ago.” This interpretation of the satisfaction of Section 2 was later disputed by Commissioner Roy.

From there, Mr. Baker’s presentation got immediately to the point. “…[T]he working group as of right now would recommend a 12 month extension allowed under the regulations…,” referring to the punt clause we described in Section 3 of 935 CMR 500.050(11)(f). Mr. Baker’s presentation offered no alternative to this recommendation.

Next, Mr. Baker outlined six justifications for the extension, which were criticized by Commissioner Roy in later discussion. Even Acting Chair Bruce Stebbins, who usually says the least in these meetings, doubted them: “… the slide you put up that, had we been sitting here 6 or 7 months ago, probably would not have been necessary.”

The Deputy General Counsel’s presentation proposed a timeline to produce a report to guide the evaluation of the exclusivity period by September 11th of this year. It concluded by proposing language for a motion to extend the exclusivity period by 12 months.

What didn’t the office of General Counsel tell us?

The most glaring omission of the Working Group’s presentation was the lack of a slide listing its members. Any casual viewer of Public Meetings will note that listing names and giving credit are core functions of these presentations which are never absent.

Commissioner Roy’s question, “Who is currently on the working group?” never got answered completely. Instead, Mr. Baker said, “I don’t have all the names in front of me, but, we typically have someone represented from each department. … it was initially Commissioner Concepción. And recently Commissioner Camargo helped to guide the conversation in the last month.” 

Since Commissioner Concepción’s maternity leave began in August 2024, it appears that the Working Group went for ~6 months without the attention of a Commissioner. This led Commissioner Roy to suggest that the Working Group would benefit from adding a Commissioner. In response, Commissioner Camargo said, “So there’s two of us technically both. There’s one on leave. So, so maybe it’s like a third one, right? But just, you know, is this has two commissioners. Okay. Thank you for that clarity.” 

Further questioning the background of the working group, Commissioner Roy asked, “Okay. And so the charter that you referenced, was that the original charter or was there one prior?” Mr. Baker answered, “I only know of the one.”

The presentation of the Deputy General Counsel also lacked a slide to list the criteria of the Working Group’s data acquisition, or anything about its progress. Commissioner Roy probed this early, asking, “Thank you. Deputy General Counsel Baker. Do we have goals and criteria that we can share with the public?” Baker’s response: “Not at this point.”

To the Commissioner’s question, “…and the data collection so far at a very, very high level, can you share any of the categories that we have information on?” In response, the Deputy General Counsel read the categories of information outlined in Section 1 of 935 CMR 500.050(11)(f). 

The representative of the Delivery Extension Working Group was unable to mention the membership of the group, its goals and progress, or why it was established so late in the exclusivity period.

Does any report exist?

Mr. Baker’s presentation and words never directly acknowledged the lack of a report, but some of his words strongly implied that none currently exists. The Deputy General Counsel at one point said, “So we collect licensing data that we will be pulling from so, I think we, we’ve been collecting it.” When answering a question about the scope of the report, Mr. Baker said, “I think that the report will reflect the entire period.”

Commissioner Roy burrowed into this discrepancy by asking, “And you’re advising we can’t go higher than 12 months today?” Baker replied, “That’s correct.” Roy followed up, “Based on the lack of a report?” Baker responded, “I wouldn’t characterize it in that way. I would say the regulations allow for a 12 month extension. If you wanted to go past 12 months for an extension as, like a set term of 36 months or 24 months, then you would have to opine on whether full participation has gone up from there.” The “opining” he mentioned is to be based upon the report in question, so his answer restated the Commissioner’s point even though he claimed to disagree.

Commissioner Roy clarified her concerns by revisiting the statutory provisions, saying “the commission shall collect or report on data measuring the criteria throughout the exclusivity period. But it seems like we’re doing retroactive.” The response, “I don’t think it’s accurate because we collect data every month that we would be using for this report overall,” suggests that the Office of General Counsel regards the passive data collection performed by other parts of the CCC as progress on the Working Group’s mandate. 

The evasiveness of Mr. Baker in discussing the Working Group’s progress was visible, and Commissioner Roy appeared to leave unsatisfied with his answers.

What are the consequences of this extension of the exclusivity period?

Commissioner Roy authenticated her interpretation of the regulations by citing the person who wrote them. She recalled a public listening session held by the CCC on Dec. 11, 2024, and read back a portion of the minutes saying, “… the next speaker was former Commissioner Shaleen Title. She noted that other speakers had referenced arbitrary numbers for extending the exclusivity period, and cautioned that the regulations already provided a process for extending the exclusivity period which should be followed. She explained that setting arbitrary standards for the exclusivity period would invite litigation.”

With this statement, Commissioner Roy made her concern clear. When she informed the room that she had previously spoken with Mr. Baker and asked him to retrieve the meeting minutes she quoted, she implied that she has previously warned the Office of General Counsel of their noncompliance with statute. 

The reference to litigation brought to mind the lawsuit filed by the Commonwealth Dispensary Association on January 13th, 2021, in opposition of the exclusivity period. That lawsuit was withdrawn, but Commissioner Stebbins acknowledged the risk when he said, “Commissioner Roy, you know, we were all early in our tenure when this exclusivity period started, but there was litigation that was threatened against the Commission for the exclusivity periods.”

These concerns explain why so much of the discussion of the Delivery Extension Working Group report dwelt on the enabling statute. There is a high probability that an extension of the exclusivity period will produce a lawsuit, especially if it is perceived that this extension was caused by a failure of the Commission to follow statute. 

Conclusion

The choice of Deputy General Counsel Baker to represent the Working Group was conspicuous for how little he could tell us. An observer might suggest that the Legal Department of the Commission set out a “patsy” on Thursday to defray the legal exposure of the Commission, complete with a challenged assertion of following statute. The omission of a list of participants in the Working Group had the result of sparing individual staff from public accountability for its progress. 

Together with our recent analysis of the CCC’s Industry Report, this extension process establishes a pattern of lapsed data analysis by the CCC and contested interpretations of statute by its Office of General Counsel. We continue to wonder when this pattern will be investigated to its origin by state authorities.