“The Legalization of Recreational

Marijuana in Massachusetts and the

Limits of Social Justice for Minorities and
Communities Disproportionately
Impacted by Prior Marijuana Laws and
Drug Enforcement Policies”

Wilton B. Hyman1

O
n Tuesday, November 8, 2016, Massachusetts voters approved a
ballot initiative that legalized the recreational use of marijuana, which
took effect on December 15, 2016.2 Individuals age 21 and over are
now allowed to possess, use, purchase, process or manufacture “1 ounce or
less of marijuana.”3 Individuals are also allowed to possess, at their
primary residence, “up to 10 ounces of marijuana and any marijuana
produced by marijuana plants cultivated on the premises,” possessing up
to 6 marijuana plants for personal consumption, and up to 12 plants if there
is another adult, age 21 or over, living at the residence. 4
M.G.L. ch. 94G contains the statutes governing the regulation of
recreational marijuana, and authorizes the Cannabis Control Commission
[hereinafter “Commission”] to exercise “all the powers necessary or
convenient to carry out and effectuate its purposes,” including awarding
licenses to marijuana establishments,5 as well as promulgating regulations
in carrying out its duties under ch. 94G.6 “Marijuana establishment” is
defined to include “a marijuana cultivator, independent testing laboratory,

1 Professor of Law, New England Law | Boston. B.A. UNC-CH; J.D. NCCU; LLM,
Univ. of Florida.
2 Joshua Miller, Mass. Voters Say ‘Yes’ To Legalizing Marijuana, Nov. 9, 2016, BOS. GLOBE

(sub. req.), https://perma.cc/9XN2-BHDP.

3 MASS. GEN. LAWS ch. 94G, § 7(a)(1) (2017).
4 MASS. GEN. LAWS ch. 94G, § 7(a)(2) (2017).
5 MASS. GEN. LAWS ANN. ch. 94G, § 4(a)(x) (West 2017).
6 MASS. GEN. LAWS ch. 94G, § 4(a)(xxviii) (2017).

101
102 New England Law Review [Vol. 53 | 100

marijuana product manufacturer, marijuana retailer, or any other type of

licensed marijuana-related business.”7
The Commission was originally authorized to issue licenses to
marijuana establishments beginning on January 1, 2018,8 however,
legislative amendments delayed the issuance of licenses until July 1, 2018. 9
On October 4, 2018, the Commission issued the first “final” licenses to
two marijuana retailers located in Leicester and Northampton, which
authorized those retailers to begin operations.10 Both locations commenced
retail sales on November 20, 2018.11
As significant as Massachusetts’ legalization of recreational marijuana
was, becoming the first state on the East Coast to do so, the legislature’s
inclusion of provisions designed to benefit persons with a past record of
marijuana-related drug offenses and the residents (or former residents) of
communities that had been disproportionately harmed by earlier
marijuana laws and the manner in which those laws were enforced,12
reflects the social justice goals of the legislation, and arguably, a form of
reparations for the effects of past drug enforcement laws and policies.
However, to fully appreciate the social justice aims of the legalization effort
and their likely impact, an appreciation of the effect of those past marijuana
laws on minority communities also needs to be acknowledged and
understood. In addition, this article will also explain the process for
starting up a marijuana establishment in Massachusetts, will briefly
describe the Massachusetts statutes and regulations which reflect the social
justice goals of the legalization effort, and potential remedies to the issues
that this article documents.

I. Impact of Marijuana Laws on Minorities in Massachusetts

From 2000-2017, the number of cannabis possession charges declined

in Massachusetts, especially after voters approved a ballot measure
decriminalizing possession of up to 1 ounce of marijuana in 2008.13

7MASS. GEN. LAWS ANN. ch. 94G, § 1 (West 2017).

8MASS. GEN. LAWS ch. 94G, § 5(c)(1) (2016); The Regulation and Taxation of Marijuana
Act, Mass. Acts ch. 334 (2016).
9 An Act to Ensure Safe Access to Marijuana, Mass. Acts ch. 55, § 35 (2017).
10Dan Adams, First Retail Pot Shops In Massachusetts Approved By Commission, Oct. 4,
2018, BOS. GLOBE (sub. req.), https://perma.cc/X5J2-SCSX.
11 Dan Adams, Michael Levenson, and Felicia Gans, Recreational Marijuana Sales Begin In

Massachusetts, First On East Coast, Nov. 20, 2018, BOS. GLOBE (sub. req.),
https://perma.cc/A2WA-A7K5.
12 Doonan SM., Johnson JK., (2019, April). A Baseline Review and Assessment of

Cannabis Use and Public Safety Part 2: 94C Violations and Social Equity: Literature Review and
Preliminary Data in Massachusetts. Boston, MA: Massachusetts Cannabis Control Commission, 55
[hereinafter Doonan & Johnson].
13 Id. at 9, 18–24. See MASS. GEN. LAWS ANN. ch. 94C, § 32L (West 2017); An Act
2019] Recreational Marijuana in Massachusetts 103

Statewide, from 2000-2013, Blacks were subject to a higher percentage

of cannabis-related offenses (transporting (12%); distributing (21.9%);
possessing (12.7%); buying or receiving (16.1%), or using or consuming
cannabis (12%)), as compared to their percentage of the state population,
5.4% in 2000 and 6.6% in 2010.14 From 2000-2018, Blacks accounted for
68.3% of all controlled substances violations (M.G.L. ch. 94C) in the City of
Boston,15 however, Blacks only represented 22.4% of the Boston population
in 2010,16 and an estimated percentage of 25.3% in 2018.17
Hispanics were also subject to a higher percentage of cannabis-related
offenses statewide, (transporting (11.2%); distributing (18.7); possessing
(11.1%), and buying or receiving cannabis (15.1%), in comparison to their
percentage of the state population, 6.8% in 2000 and 9.6% in 2010. 18 City of
Boston data for controlled substances violations by Hispanics, from 2000-
2018, is not available because it could not be disaggregated.19
Statewide, Whites had a higher percentage of offenses for cultivating
or manufacturing cannabis (89.2%), and a lower percentage for distribution
or sale (73.2%), in comparison to their percentage of the state population,
84.5% in 2000 and 80.4% in 2010.20 For Whites, offenses for buying or
receiving, possessing or concealing, transporting, and using or consuming
cannabis, were within the ratio that they represented of the state
population (84.5-80.4%).21 From 2000-2018, Whites accounted for 30.5% of
all controlled substances violations (M.G.L. ch. 94C) in the City of Boston. 22
Whites represented 47% of the Boston population in 2010, and an estimated
percentage of 52.8% in 2018.23
Asians had a smaller percentage of all cannabis-related offenses, 1.1%
in total, as compared to their share of the state population, 3.8% in 2000
and 5.3% in 2010.24 From 2000-2018, Asians represented 1.2% of all

Establishing A Sensible State Marijuana Policy, Mass. Acts ch. 387 (2008).
14 Doonan & Johnson, supra note 12, at 9, 25–26, 34 (These statistics do not include data

from the City of Boston).

15 Doonan & Johnson, supra note 12, at 53.
16 Doonan & Johnson, supra note 12, at 53.
17 United States Census Bureau, Boston, Massachusetts, Census.Gov, https://perma.cc/

M5HL-PS7M (last visited July 16, 2019).

18 Doonan & Johnson, supra note 12, at 9, 25–27, 34 (These statistics do not include data

from the City of Boston).

19 Doonan & Johnson, supra note 12, at 53.

20 Doonan & Johnson, supra note 12, at 9, 25–26, 34 (These statistics do not include data

from the City of Boston).

21Doonan & Johnson, supra note 12, at 25–26.
22Doonan & Johnson, supra note 12, at 53.
23 United States Census Bureau, Boston, Massachusetts, Census.Gov, https://perma.cc/

DDY4-4F8R (last visited July 16, 2019).

24 Doonan & Johnson, supra note 12, at 9, 25–26, 34 (findings do not include data from
104 New England Law Review [Vol. 53 | 100

controlled substances offenses (M.G.L. ch. 94C) in the City of Boston. 25 In

2010, Asians represented 8.9% of the Boston population26 and an estimated
percentage of 9.5% in 2018.27
Most offenders for cannabis-related violations were males.28
Research indicates that employment outcomes are negatively impacted
for persons with drug offense records.29 Nationwide, Blacks and
Latino/Hispanic individuals “are arrested for drug offenses at higher rates
than Whites despite similar rates of drug use and sale . . . .”30 Despite the
fact that adult-use legalization reduces the number of cannabis-related
offenses for all racial groups, the disproportionate impacts on racial
minorities still exist.31

II. Starting-up a Marijuana Establishment in Massachusetts

An application for a marijuana establishment license requires three

separate packets: an Application of Intent packet; a Background check
packet; and a Management and Operations Profile packet. 32 The
Commission must, within 90 days of notifying an applicant that all of their
packets are complete, determine whether to issue or deny a provisional
license to the applicant.33 The provisional license allows the applicant to
develop its Marijuana Establishment in accordance with its application,
towards ultimately receiving a final license from the Commission. 34
Applicants for a marijuana establishment license must pay a
nonrefundable application fee of $300 for a license as a manufacturer,
retailer, independent testing lab, or research lab. 35 The application fee for a
cultivator license ranges from $100 to $600, based on the square footage of
facility, and, whether it is indoors or outdoors.36 Marijuana manufacturers,
retailers, and independent testing labs must also pay an annual license fee

the City of Boston).

25
Doonan & Johnson, supra note 12, at 53.
26
Doonan & Johnson, supra note 12, at 53.
27 United States Census Bureau, Boston, Massachusetts, Census.Gov, https://perma.cc/

3PBY-T7SL (last visited July 16, 2019).

28 Doonan & Johnson, supra note 12, at 9, 35.
29 Doonan & Johnson, supra note 12, at 9, 56.
30 Doonan & Johnson, supra note 12, at 9, 57–60.

31 Doonan & Johnson, supra note 12, at 9, 60–62.

32 935 Mass. Code Regs. 500.101(1)(a)-(d) (2019).

33 935 Mass. Code Regs. 500.102(2)(c) (2019).

34 935 Mass. Code Regs. 500.101(1), (2)(a); MASSACHUSETTS CANNABIS CONTROL

COMMISSION, FIRST ANNUAL ACTIVITIES REPORT: ADULT-USE MARIJUANA PROGRAM 5 (Sep. 28,
2018), available at https://perma.cc/7RCS-QY5R.
35 935 Mass. Code Regs. 500.005(1)(a), (d) (2019).
36 Id.
2019] Recreational Marijuana in Massachusetts 105

of $5,000.37 The annual license fee for research labs is $1,000.38 Cultivators
pay an annual license fee ranging from $625 to $25,000, based on its size
and whether it is indoors or outdoors.39
A survey of Economic Empowerment Program participants and
potential applicants who had not applied for a marijuana establishment
license determined that the primary reason that they had not was because
of “difficulty raising funds or capital.”40
The startup costs for a marijuana business ranges from $1,000,000-
$5,000,000, and most banks do not lend money to marijuana businesses
because marijuana is a prohibited substance under federal law. 41
Financing sources for a marijuana business include: (1) self-funding
using savings; (2) capital investment from private investors; (3) a home
equity loan; (4) credit cards; (5) borrowing from friends and family, and (6)
borrowing from a small bank.42
A study by the Federal Reserve Bank of Boston found that Whites in
the Boston Metropolitan Statistical Area (MSA) had a homeownership
percentage of 79%, compared to 33.8% for Blacks, 49% for Caribbean
Blacks, 29% for Cape Verdeans, 21% for Puerto Ricans, and 17% for
Dominicans.43 The median net worth of Whites in the Boston MSA was
$247,500, $8 for Blacks, $12,000 for Caribbean Blacks, $3,020 for Puerto
Ricans, and $0 for Dominicans. 44 Due to these asset and wealth disparities,
minorities in the Boston area are at a severe disadvantage in obtaining the
financing necessary for creating and operating a business.
As a result, the most significant barrier that minorities will encounter
in starting up marijuana establishments in Massachusetts is raising the
capital necessary to create and operate these businesses.

III. Statutes and Regulations Which Reflect the Social Justice

Goals in Massachusetts’ Recreational Marijuana Program

M.G.L. ch. 94G, § 4(a1/2)(iii) provides that the Commission shall adopt
regulations that include the requirements for obtaining employment with,

37 935 Mass. Code Regs. 500.005(1)(d).

38 Id.
39 Id.

40 Doonan & Johnson, supra note 12, at 9, 66.

41 To Boost Equity, Give Public Loans to Pot Startups, BOS. GLOBE (May 16, 2019),

https://perma.cc/8MWU-VBSE; see Dan Adams, Mass. Banks, Credit Unions Expand Services For
Marijuana Companies, BOS. GLOBE (July 26, 2019), https://perma.cc/6XFL-PULQ.
42 See Julie Weed, Legal Weed Entrepreneurs Finding New Funding Options, FORBES (Sept.
9, 2017), https://perma.cc/N8PN-Q3TD.
43 Ana Patricia Munoz et al., The Color of Wealth in Boston, FED. RESERVE BANK OF BOS. 15

(Mar. 25, 2015), https://perma.cc/6CB8-LDCC.

44 Id. at 20.
106 New England Law Review [Vol. 53 | 100

or a license to operate, a marijuana establishment, however, a “prior

conviction solely for a marijuana-related offense or for a violation of
section 34 of chapter 94C [unlawful possession of a controlled substance]
shall not disqualify an individual or otherwise affect eligibility for
employment or licensure in connection with a marijuana establishment,
unless the offense involved the distribution of a controlled substance,
including marijuana, to a minor . . . .”
M.G.L. ch. 94G, § 4(a1/2)(iv) provides that regulations adopted by the
Commission “promote and encourage full participation in the regulated
marijuana industry by people from communities that have previously been
disproportionately harmed by marijuana prohibition and enforcement and
to positively impact those communities . . . .”
M.G.L. ch.. 94G, § 5(b)(4) prohibits the approval of a marijuana
establishment’s license if an individual who owns a 10% or greater voting
or financial interest in the establishment was convicted of a felony, or was
convicted of a crime in another state that would be a felony in
Massachusetts, excluding convictions of marijuana-related offenses and
offenses related to unlawful possession of a controlled substance, not
involving distribution to a minor.
M.G.L. ch. 94G, § 14(a) provides for the creation of a “Marijuana
Regulation Fund,” which shall be funded with funds received from
applications and licenses for marijuana establishments, penalties for civil
violations of ch. 94G, and state excise taxes for marijuana sales, and interest
income from the fund. Section 14(b) provides that the fund shall be used
“for the implementation, administration, and enforcement” of ch. 94G by
the Cannabis Control Commission and the department of agricultural
resources, and then for: “(i) public and behavioral health . . .; (ii) public
safety; (iii) municipal police training; (iv) the Prevention and Wellness
Trust Fund established in section 2G of chapter 111; and (v) programming
for restorative justice, jail diversion, workforce development, industry
specific technical assistance, and mentoring services for economically-
disadvantaged persons in communities disproportionately impacted by
high rates of arrest and incarceration for marijuana offenses pursuant to
Chapter 94C.”
M.G.L. ch. 94G, § 17(a) provides that the Commission must establish a
“research agenda in order to understand the social and economic trends of
marijuana in the commonwealth, to inform future decisions that would aid
in the closure of the illicit marijuana marketplace and to inform the
commission on the public health impacts of marijuana.”
The research will include: (1) the financial impacts of legalization on
state and local governments, and its impact on the illicit marijuana market;
(2) an analysis of the growth or reduction in the legal and illegal marijuana
markets, “including estimates and comparisons of pricing and product
availability in both markets,” and (3) the collection of data on “the number
2019] Recreational Marijuana in Massachusetts 107

of civil penalties, arrests, prosecutions, incarcerations, and sanctions

imposed for violations of chapter 94C for possession, distribution, or
trafficking of marijuana or marijuana products, including the age, race,
gender, country of origin, state geographic region and average sanctions of
the persons charged . . . .”
Section 59 of the Massachusetts Legislature Session Law—Acts of 2017,
Chapter 55, “An Act to Ensure Safe Access to Marijuana” provides that “a
person having a record of criminal court appearance or disposition on file
with the office of the commissioner of probation for a charge of unlawful
possession of a controlled substance under section 34 of chapter 94C of the
General Laws shall be eligible to have the record and related records, if
any, sealed immediately under section 100A of chapter 276 of the General
Laws if the controlled substance specified in the complaint related to the
court appearance or disposition was marihuana under clause (1) of
subsection (b) of Class D of section 31 of said chapter 94C.”
Section 77(b)-(c) of the Massachusetts Legislature Session Law—Acts of
2017, Chapter 55, “An Act to Ensure Safe Access to Marijuana” provides
that the Commission “shall conduct a study on participation in the
regulated marijuana industry, including participation by minority business
enterprises, women business enterprises and veteran business enterprises.
The study shall include, but shall not be limited to: (i) a review of the
participation in activities related to the regulation, licensing and promotion
of marijuana establishments; (ii) a compilation of data on the individuals
and entities that apply for and are issued licenses under chapter 94G . . .,
including the individual’s or members of an entity’s race, gender, country
of origin and state geographic region; and (iii) any evidence of
discrimination or barriers to entry in the regulated marijuana industry.
(c) If, upon completion of the study, the commission determines that
there is evidence of discrimination or barriers to entry in the regulated
marijuana industry, the commission shall adopt diversity licensing goals
that provide meaningful participation of communities disproportionately
affected by cannabis prohibition and enforcement. The commission shall,
in consultation with the supplier diversity office under the executive office
of administration and finance, develop training programs designed and
implemented to achieve meaningful participation by minority persons,
women, and veterans.
In implementation of licensing of marijuana retailers, the commission
shall prepare annual reports that shall include, but shall not be limited to:
(i) the total number of licensed marijuana retailers; (ii) the number and
percentage of licenses provided to minority, women, and veteran owned
business; (iii) the total number and percentage of minority, women, and
veteran employees in the marijuana industry, and (iv) recommendations
on reducing or eliminating any identified barriers to entry, including access
to capital, in the marijuana industry . . . .”
108 New England Law Review [Vol. 53 | 100

935 CMR § 500.101(1)(a)(13) provides that an applicant for a Marijuana

Establishment must provide in its Application of Intent “a plan . . . to
positively impact areas of disproportionate impact,” which are defined in
935 CMR § 500.002, as areas with “historically high rates of arrest,
conviction, and incarceration related to marijuana crimes.”
935 CMR § 500.101(1)(c)(7)(k) provides that an applicant for a
Marijuana Establishment must include in its Management and Operations
Profile a summary of its operating practices, which must include “diversity
plans to promote equity among minorities, women, veterans, people with
disabilities, and people of all gender identities and sexual orientation, in
the operation of the Marijuana Establishment.”
935 CMR § 500.101(1)(e) provides that an applicant who wants to be
licensed as “an Economic Empowerment Applicant” must obtain
certification from the Commission for that status. Certification as an
Economic Empowerment Applicant requires that the applicant satisfy at
least three of the following requirements:
(a) Individuals who have lived in areas of
disproportionate impact for five out of the last ten years
must own a majority interest in the Marijuana
Establishment;
(b) Individuals owning a majority interest in the
Marijuana Establishment must have “held one or more
previous positions where the primary population served
were disproportionately impacted, or where primary
responsibilities included economic education, resource
provision or empowerment to disproportionately
impacted individuals or communities;”
(c) “At least 51% of current employees or
subcontractors reside in areas of disproportionate impact
and by the first day of business, the ratio will meet or
exceed 75%;”
(d) “At least 51% of employees or subcontractors have
drug-related CORI [Criminal Offender Record
Information] and are otherwise legally employable in
cannabis enterprises;”
(e) “A majority of the ownership is made up of
individuals from Black, African American, Hispanic or
Latino descent;”
(f) “Other significant articulable demonstration of past
experience in or business practices that promote economic
empowerment in areas of disproportionate impact.”45

45 935 MASS. CODE REGS. §500.101(1)(e)(2) (2018) (“Seed-to-sale monthly program fees
2019] Recreational Marijuana in Massachusetts 109

IV. The Impact of Economic Empowerment Certification for

Applicants

Applicants who are certified as an Economic Empowerment Applicant

are entitled to priority application review by the Commission,46 were
allowed to apply for licenses on April 17, 2018, two weeks before non-
priority applicants were allowed to apply, and had to have applied for
certification between April 1-15, 2018.47 In addition, certified applicants
may also receive assistance through the “Social Equity Program.”48 One
hundred and twenty-three applicants were granted Economic
Empowerment certification status,49 however, only one provisional license
has been granted to an Economic Empowerment applicant50 and none are
currently operating as a marijuana establishment. 51
Under the Social Equity Program, applicants and licensees may receive
assistance with: “(1) Management, recruitment and employee trainings; (2)
Accounting and sales forecasting; (3) Tax prediction and compliance; (4)
Legal compliance; (5) Business plan creation and operational development;
(6) Marijuana industry best practices; and (7) Assistance with identifying or
raising funds or capital.”52
Eligibility for the Social Equity Program is based on whether the
applicants or licensees: (1) reside in an area of disproportionate impact;(2)
resided in Massachusetts for the previous twelve months and had been
convicted of unlawful possession of a controlled substance in
Massachusetts or another jurisdiction; or, (3) had residence in
Massachusetts for the previous twelve months and, “was either married to
or the child of an individual convicted” for unlawful possession of a
controlled substance in Massachusetts or another jurisdiction.53
One of the owners of Pure Oasis, the Economic Empowerment
applicant that was granted a provisional license to operate in the City of
Boston, stated that the host community agreement was the most difficult

are waived for Economic Empowerment Applicants…”); 935 MASS. CODE REGS. §500.005(1)(a)-
(b) (2018).
46 925 MASS. CODE REGS. §500.102(2)(a)(1).

47 Licensure as a Marijuana Establishment, CANNABIS CONTROL COMM. 1, 7,

https://perma.cc/EZL4-JZGS (last visited July 21, 2019).

48935 MASS. CODE. REGS. §102(1)(b)(1).
49 First Annual Activities Report: Adult-Use Marijuana Program, CANNABIS CONTROL
COMM. 4 (Sept. 28, 2018), https://perma.cc/M4T7-9LNN.
50 Id. at 5.
51 Naomi Martin, In Massachusetts, People Of Color Are The First To Get Arrested For
Marijuana—And The Last To Be Licensed, BOS. GLOBE (Apr. 8, 2019) https://perma.cc/F3H6-JEU5.
52 935 MASS. CODE. REGS. §500.105(17)(a).

53 935 MASS. CODE. REGS. §500.105(17)(b) (The nonrefundable application fee is waived

for participants in the Social Equity program); 935 MASS. CODE. REGS. §500.005(1)(b).
110 New England Law Review [Vol. 53 | 100

part of the licensing process, “noting that other entrepreneurs like him
have perhaps struggled because wealthier companies were able to offer
municipalities more money as part of the local contract . . . that pot
businesses need to apply for a license.”54
As part of the Application of Intent packet, one of three packets
necessary for an application for licensure as a Marijuana Establishment, 55
the applicant must include a document evidencing that a “host community
agreement” has been entered into by the applicant and authorized
representatives of the community where the establishment will be
located.56 Municipalities may impose a local sales tax on retail sales of
marijuana and marijuana products of up to 3% of the total sales price. 57 The
host community agreement may also impose a “community impact fee,”
that should be “reasonably related to the costs imposed upon the
municipality by the operation of the marijuana establishment . . . and shall
not amount to more than 3 per cent of the gross sales of the marijuana
establishment . . . or be effective for longer than 5 years . . . .”58
Some communities have sought payments in addition to the
community impact fee, arguing that “the law doesn’t explicitly prohibit
them from requiring separate fees or mandatory “donations” to local
nonprofits in exchange for local approval.”59 These additional fees and
donations prevent small businesses from entering the recreational
marijuana market and benefit large companies with the resources to pay
more to the municipality.60 An attorney who represented marijuana
businesses stated that his clients “have been pressed to sign HCAs that call
for a 4 percent impact fee, require an up-front payment to the town, and
that require businesses to make “voluntary” donations to various town
organizations.”61
One of the impacts of municipalities’ demand for additional payments
under the host community agreements is that in addition to reducing the
number of retail marijuana establishments in operation, it also results in
higher prices for products sold by licensed marijuana retailers, making

54 Naomi Martin, “Boston’s First Recreational Marijuana Store Receives Preliminary License,

Could Open Within Months, BOS. GLOBE, July 17, 2019

55 Mass. Regs. Code tit. 935 § 500.101(1).
56 Mass. Regs. Code tit. 935 §500.101(1)(a)(8); M.G.L. ch. 94G, § 3(d).
57 M.G,L. ch. 64N, § 3(a).

58 M.G,L. ch. 94G, § 3(d).

59 Dan Adams, Legislature Considers Action On Local Marijuana Contracts, BOS. GLOBE (July

24, 2019), https://perma.cc/CV28-DZ3G.

60 Id.

61 Colin A. Young, “Host Agreements Seen As Impeding Marijuana Sector’s Growth, BOS.

GLOBE (July 30, 2019), https://perma.cc/U4C6-G2MQ.

2019] Recreational Marijuana in Massachusetts 111

them less competitive in comparison to the illegal marijuana market. 62

Massachusetts Senate Bill 1126 would grant the CCC the power to
“review, regulate, and enforce” host community agreements, while
Massachusetts House Bill 3536 would prohibit any payments under host
community agreements in excess of 3% of gross sales, limited to five
years.63

V. Potential Remedies to the “Access to Capital” Problem

(1) The Commission has proposed regulatory changes that would:

(A) Allow cannabis cafes to be located within twelve communities, and
two-year licenses to operate the cafes would be granted, initially, to
microbusinesses, craft marijuana cooperatives, certified Economic
Empowerment Applicants, and Social Equity Program participants. 64 On
September 24, 2019, the Cannabis Control Commission approved
regulations authorizing a pilot program that would allow twelve
communities to host cannabis cafes and authorizes the issuance of licenses
for cannabis cafes, for an initial two year period, to microbusinesses, craft
marijuana cooperatives, certified Economic Empowerment Applicants, and
Social Equity Program participants. The pilot program cannot begin
operation until state law is changed to grant cities and towns the authority
to allow social consumption.65
(B) Create a recreational marijuana delivery-only license, available only
to certified Economic Empowerment Applicants and Social Equity
Program participants for an initial two-year period.66 On September 24,
2019, the Cannabis Control Commission approved regulations allowing
delivery-only licenses for adult-use cannabis to be issued to certified
Economic Empowerment Applicants, Social Equity Program participants,
and microbusinesses, for an initial two-year period.67

62 Id.
63 “An Act Relative to Host Community Agreements,” S. 1126; “An Act Relative to the
Cannabis Control Commission’s Authority Regarding Host Community Agreements,” H.
3536; see Adams, supra note 59.
64 See Cannabis Control Commission Unaminmously Approves Draft Regulations Proposing

Changes to Adult Use, Medical Use of Marijuana Programs, CANNABIS CONTROL COMM. (June 28,
2019) https://perma.cc/5KXJ-8AEZ.
65 See Cannabis Control Commission Approves Final Adult Use, Medical Use of Marijuana
Regulations, CANNABIS CONTROL COMM.(September 24, 2019), https://perma.cc/J63B-K2E7 p. 2-
3; Dan Adams, “Cannabis Commission Approves Marijuana Deliveries,” BOS. GLOBE, September
24, 2019. https://perma.cc/2A42-L8UC.
66 See Cannabis Control Commission Unaminmously Approves Draft Regulations Proposing
Changes to Adult Use, Medical Use of Marijuana Programs, CANNABIS CONTROL COMM. (June 28,
2019) https://perma.cc/MZW6-XQFM.
67 See Cannabis Control Commission Approves Final Adult Use, Medical Use of Marijuana

Regulations, CANNABIS CONTROL COMM.(September 24, 2019), https://perma.cc/88M8-VEJ6, p.

112 New England Law Review [Vol. 53 | 100

(C) Waive application fees and reduce annual license fees for certified
Economic Empowerment Applicants and Social Equity Program
participants.68 On September 24, 2019, the Cannabis Control Commission
approved regulations that waive application fees and reduce annual
license fees for certified Economic Empowerment Applicants and Social
Equity Program participants. 69
(2) Massachusetts State Senator Sonia Chang-Diaz proposed budget
amendments that would create a “Cannabis Social Equity Loan Trust
Fund,” which would provide interest-free loans to Economic
Empowerment Program applicants and to Social Equity Program
participants.70 The program would be funded by 10% of the Cannabis
Excise Tax and by gifts, grants and donations from private parties.71 The
Program had a proposed budget of $1,000,000 for startup and operational
expenses.72 These amendments were rejected by the Massachusetts State
Senate, however, it is expected that they will be resubmitted for
reconsideration in the future.73

CONCLUSION

The Massachusetts State Legislature and the Cannabis Control

Commission should be commended for attempting to remedy the past and
present-day circumstances of individuals and communities that have been
disproportionately harmed by past marijuana laws and enforcement
policies, in light of a marijuana legalization system which favors “white
players and out-of-state corporations.”74
Despite detailed and ambitious programs that were intended to help
those harmed by an inequitable system of marijuana prohibition, and by
the manner in which it was enforced, the structural issues of minority
wealth disparities and their inadequate access to capital is another barrier

3; Adams, supra note 65.

68 See Cannabis Control Commission Unaminmously Approves Draft Regulations Proposing
Changes to Adult Use, Medical Use of Marijuana Programs, CANNABIS CONTROL COMM. (June 28,
2019) https://perma.cc/HJ3E-PNYT.
69 See Cannabis Control Commission Approves Final Adult Use, Medical Use of Marijuana

Regulations, CANNABIS CONTROL COMM. (September 24, 2019), https://perma.cc/VJ42-ZQQ3

(explaining at page five the approval of adult use of Marijuana).
70 “Social Equity in Cannabis, Part I,” Amendment 867, Budget Amendment ID:

FY2020-S3-867 [hereinafter Social Equity in Cannabis]; To Boost Equity, Give Public Loans to Pot
Startups, BOS. GLOBE (May 17, 2019), https://perma.cc/3MUJ-XAZS.
71 Social Equity in Cannabis, supra note 70.

72 Social Equity in Cannabis, supra note 70; To Boast Equity, supra note 57.

73 Naomi Martin, Mass. Senate rejects marijuana loan proposal for social equity applicants,

BOS. GLOBE (May 22, 2019) https://perma.cc/TJ2Q-WG8L.

74 To Boast Equity, supra note 57.
2019] Recreational Marijuana in Massachusetts 113

that the Massachusetts Legislature and the Commission must address in

order to redress an inherently unfair reality.