If you accept the findings of a year-long study by the Washington state liquor and cannabis board, Massachusetts regulators have a substantial challenge in store to ensure that legal cannabis is not diverted to minors, across state lines and to the black market.  At risk is more than the public health and safety consequences of diversion, but also the Commonwealth's ability to comply with the federal directives of the so-called Cole Memorandum, particularly in light of the renewed attention Attorney General Sessions has already placed on these issues.

As a reminder to readers, the Cole Memorandum provided that state-legal cannabis activity would nonetheless be an “enforcement priority” of the federal Department of Justice if such activity resulted in:

• Distribution to minors;
• Revenue from the sale of marijuana going to criminal enterprises, gangs, and cartels; and
• Diversion of marijuana from states where it is legal under state law in some form to other states.

As we have written in the past, the Department of Justice under Attorney General Sessions has begun carefully monitoring the activities of regulators in adult-use states, going so far as to write letters identifying areas of potential non-compliance with the protocols of the enforcement detente established by the Cole Memorandum.

Massachusetts may have reason to be concerned, particularly in light of the added scrutiny of the new DOJ leadership.  With the exception of Colorado (six plants), Oregon (four plants) and potentially California (six plants), Massachusetts is the only state that authorizes adults to cultivate cannabis in their homes without a permit and without an ability for the state to track home grows.  The limit in Massachusetts is 12 plants.  For context, 12 plants could net dozens of pounds of cannabis with a tremendous street value on the black market.  Additionally, the Legislature has instructed the Cannabis Control Commission to create certain innovative licensing categories that have not been attempted in other states.

The Washington State study makes some striking findings regarding home growing, in particular.  Noting that it conducts more than 1,200 compliance checks on licensed cannabis dispensaries and cultivators each year – with a very high rate of compliance – the Washington Liquor and Cannabis Board studied its potential ability to ensure the requirements of the Cole Memorandum could be adhered to were home growing legalized.  The Washington regulators reported that:

• In conversations, Colorado regulators expressed an inability to enforce plant limits and non-diversion rules at home grows, making those limitations effectively unenforceable;
• In conversations, Oregon regulators recommended that if Washington legalized home growing, it do so only for a “low number of plants” to minimize diversion risk and a cover for the illicit market;
• In conversations, Rhode Island regulators recommended that home grows be required to receive a permit and be entered in a state traceability system;
• A review of available data showed that home growing places increased burdens on state and local law enforcement resources with minimal success in enforcing plant limits and export/diversion controls;
• Home growing is thought to be associated with (i) increased youth access; (ii) increased illicit market activity; (iii) increases in law enforcement calls for excessive grows and odors, robberies and burglaries, and emergencies, such as child or pet ingestion; and (iv) increases in gun ownership.

In conclusion, Washington regulators recommended that the Legislature either (1) maintain the current status quo prohibiting home growing; or (2) limit home growing to a permitted, regulated and tracked activity with a maximum of four plants.  Even then, the Study noted that there is little regulators can do to protect against youth access, diversion and pet and child ingestion, as the regulators have successfully done with regulations and enforcement in the licensed market.

Again, if Washington regulators are correct, when the Department of Justice's spotlight turns to Massachusetts, the Commonwealth's policies could come under intense scrutiny.