Today the commission held a meeting approving a draft of the new type of delivery license, which allows equity and economic empowerment businesses to purchase products from manufacturers or cultivators and sell them to consumers. The draft we discussed today is available on our website (adult-use and medical). Shortly, it will be updated with the relatively minor changes we made today and then public comment on these specific delivery policies will be open for a couple weeks. You can find a recording of today’s virtual meeting on the MA Cannabis Control Commission Facebook page.
Overall, this is a solid draft. As I’ve stated before, I am beyond grateful that with this change creating unprecedented exclusivity for social equity and economic empowerment businesses, Massachusetts might be back on track to be the first state with a functioning national model for equity. Earlier this summer, we created the new license type and required those businesses to warehouse (while leaving in place the existing option for businesses seeking to courier for retail operators), and we extended the exclusivity period to 3 years. You can find more information on those past decisions in the meeting minutes and various news stories.
But before we see any progress, we will need to implement these regulations and ESPECIALLY ensure that municipalities have all the resources and tools and information they need to get on board, or else it will never move from theory to reality. I believe that our municipal outreach on this license will be a major factor in whether it is successful or not.
(By the way, it must be unpleasant to watch proceedings with people acting as though everything is normal – it’s worth acknowledging that nothing is normal, and that with each passing month and meeting, people are closer to their boiling points for all the reasons that we have in common and all our individual reasons. It’s also worth acknowledging that the drug war harms we seek to begin repairing are very real and affect real people, and Breonna Taylor was one of them. She deserved better, and her family and friends deserve better than for the drug war to be unfolding exactly as designed. I hope it’s clear from the policy we are making that this isn’t business as usual. I think our policies and results are more important than anything any of us say. But sometimes it’s important to say something too.)
The writing group that wrote the draft regulations, led by Commissioner McBride, did an excellent job of handling two of the most important and outstanding issues well in my opinion – ensuring that there are protections against control by third-party technology platforms, and clarifying that delivery licenses that purchase at wholesale and sell to consumers are not considered Marijuana Retailers, but they do count toward a license cap (No Person or Entity Having Direct or Indirect Control in a Marijuana Retailer license shall obtain, or be granted, more than a combined total of three Marijuana Retailer Licenses and/or Wholesale Delivery Licenses). So those are dealt with.
As I know these are all important topics and not everyone has the opportunity to watch the full meetings, below is a recap of the issues I personally feel are important and the things I mentioned I’d like to see public comment on.
I think we need to change the name of this new license type. Currently, the new license type is called a Wholesale Delivery License, and this stems from the fact that the previous regulations only allowed the businesses to purchase from retail businesses, whereas now it allows the business to purchase at wholesale. But these businesses will NOT be wholesaling! Wholesaling as a verb means to SELL in bulk to another business that will sell to retail. These businesses will be purchasing at wholesale and delivering to consumers. I suggested calling it a Delivery Operator instead and was voted down 2-2. I am not really sure why I was voted down on this at the meeting today, because I read aloud the definition of wholesale from the dictionary and it means something that it is different from what the license does.
This really matters! I have a spent a lot of time over the past few years talking to local officials trying to understand why they have acted so inequitably, and it comes down to systemic bias and – crucially – confusion. We are already starting from way behind in getting municipalities to approve these types of licenses. They’re busy, distracted, and understandably don’t have time for marijuana. Confusion at the local level will KILL any chance for these businesses. I am certain of this. The last thing we need to do is name them a word that already has a definition and that doesn’t match the license.
I don’t know why Delivery Operator was rejected, or my other suggestion (Non-Storefront Delivery, similar to California), but if you have ideas for better names please submit them during comment. I think I had a pretty good sense of how important it is to be clear and concise to begin with, but the last three years have only taught me that clarity is way more important than I thought.
I also suggested that we rename the Limited Delivery License to Courier License, because it’s stickier and it conveys what the license is, but I can live with Limited Delivery License.
Putting aside my reservations about the actual practice for now, it is concerning to me that the current draft allows brick-and-mortar retailers to repackage, but delivery operators may not repackage. I lost the vote on this in a previous meeting, but I don’t think we should have different rules for those two different license types without being able to articulate why. I also am confused about the practical difference when one group can repackage with no prohibition on white labeling, and another group can white label but not repackage. I welcome public comment on implications on this for manufacturing and labeling processes.
Related, I have been receiving complaints that independent retailers feel that this license type is unfair, although I have yet to hear that from any independent retailers directly. I’m aware, of course, that currently smaller, less-resourced businesses tend to be the independent retailers. They have every right to make any concerns clear during the public comment period and I will carefully consider them.
Repackaging and White Labeling
When we only had the courier/limited type of license in place, I was very concerned about feasibility and was pushing for repackaging, white labeling, and whatever practices we could allow that might give the businesses an ability to stay in business. However, after the recent changes, we are now in a much better position where the business model appears to be feasible, and I think that we have more room to consider the implications of these decisions and weigh the pros and cons.
So that you know where I’m coming from, it was up to me, we wouldn’t have branding at all. All drugs would be sold in brown paper packaging with an informational label and any applicable Leadership Ratings and that would be it. But of course marketing is allowed, and we do have very strong marketing restrictions in place under the law. But it makes me uncomfortable to explicitly allow different delivery operators to sell the same product at different prices purely based on marketing and branding, especially when it’s a product that the company does not make itself. That strikes me as incentivizing something we should not be incentivizing, based on experience from other industries.
I’m more comfortable with this when we are talking about flower or products closer to the plant, versus products like vapes that we have much less information about. The writing group that put together the draft wisely excluded vape devices from white labeling. One further option in that direction might be to limit repackaging and white labeling to flower only. It’s also possible that my impression is wrong and I’ll be corrected by experts. I don’t know. I am interested in public comment on this subject. It’s an even more complex question when balanced against our duty to repair the imbalance and harms in favor of these businesses.
I hope this was helpful for those who needed a recap, and I look forward to reading your comments. Don’t send them in yet, watch MassCannabisControl.com for instructions and follow them so that your comments will be considered part of the public comment.
These issues are the most important to me, but of course everyone has their own perspective and I encourage you to watch the commission meetings and follow different organizations and stakeholders.
PS – before anyone asks, no, I still don’t know how long I will be in this seat! I am taking it one day at a time.