a communication from Councillor Craig Kelley, regarding a Marijuana Education and Enforcement Memorandum

CAMBRIDGE CITY COUNCIL Craig A. Kelley City Councillor CITY HALL, CAMBRIDGE, MASSACHUSETTS 02139 [phone removed] FAX: [phone removed] TTY/TDD: [phone removed] EMAIL: ckelley@cambridgema.gov To: Donna Lopez, City Clerk From: Craig A. Kelley, City Councillor; Mark Gutierrez, Council Aide Date: April 19, 2018 Subject: Memorandum Submission Please place the attached Marijuana Education and Enforcement Memorandum on the City Council agenda for the April 23, 2018 meeting. Thank you.

CAMBRIDGE CITY COUNCIL Craig A. Kelley City Councillor CITY HALL, CAMBRIDGE, MASSACHUSETTS 02139 [phone removed] FAX: [phone removed] TTY/TDD: [phone removed] EMAIL: ckelley@cambridgema.gov MEMORANDUM To: Cambridge City Council From: Craig A. Kelley, City Councillor; Mark Gutierrez, Council Aide Date: April 23, 2018 Subject: Adult-Use Recreational Marijuana- Education and Enforcement 1. Introduction There has been growing concern on the future that marijuana plays in Massachusetts communities. Since the passage of Question 4, and before that, with the legalization of medical marijuana, scores of municipalities across the state have been scrambling to understand, regulate, educate, and enforce the new laws while simultaneously being tasked with integrating them with previous marijuana regulations. A multitude of questions have been raised on how medical and adult-use recreational marijuana will affect the Cambridge community regarding both point of sale and the actual use itself. While there are still many questions about how medical marijuana use should be monitored, this memo, while not attempting to provide an in-depth legal review on the subject, is an attempt to better inform Cambridge’s ongoing marijuana discussions by providing information on the rules, enforcement, and education regarding adult-use marijuana, for use as guidance in our own quest for effective and equitable policies around these issues.

2 2. Massachusetts State Law Overview On November 8, 2016, Massachusetts voted with 54% in favor of Question 4: Legalization, Regulation, and Taxation of Marijuana, which legalized the recreational use of marijuana for people 21 and older. The law, which went into effect on December 15, 2016 and will not affect medical marijuana, provides that:1, 2 Possession: • One can carry up to 1 ounce of marijuana in public. Five grams of that may be a marijuana concentrate. • One can't have more than 10 ounces of marijuana in one’s residence. Growing: • Each resident can grow up to six plants, but there can be no more than 12 plants in a household. One must grow your plants in one’s primary residence in a locked or secured location. • The plants can’t be visible from a public space without the use of binoculars, an aircraft, or other visual aids. • If one decides to grow plants, it is recommended to buy and install the appropriate lighting and mechanical equipment and beware of overloading electrical circuits. Public Consumption: • Under the state law, one can't consume marijuana of any kind in any public place. Violations can carry a civil penalty of up to $100. Marijuana in motor vehicles: • Under the law, one can't have an open container of marijuana or marijuana products in a motor vehicle. Violations can carry a civil penalty of up to $500. • "Open container" means a package of marijuana or marijuana products with a broken seal, or with some of the contents removed. Open containers must be kept in a locked glove compartment or trunk. Driving under the influence: • The new law doesn't change the existing state laws for operating a vehicle under the influence of marijuana. It's still illegal and subject to the same fines and penalties but enforcement poses a challenge as marijuana use does not allow for the same type of impairment measurements that alcohol does. Marijuana products include edibles, beverages, topical products/ointments, oils, and tinctures.2

3 3. Federal and State Response U.S. Attorney’s Office On January 4th, 2018, U.S. Attorney General Jeff Sessions moved to rescind the so-called Cole Memorandum, an Obama-era Justice Department policy that, in general, called for non- interference with legal marijuana operations at the state level. The memo refers to the Controlled Substances Act which prohibits the cultivation, distribution, and possession of marijuana.3, 4 In response, U.S. Attorney for the District of Massachusetts’ Andrew Lelling said in a January 8th memo that he understands that people are “looking for additional guidance from this office about its approach to enforcing federal laws criminalizing marijuana cultivation and trafficking,” although he cannot “provide assurances that certain categories of participants in the state-level marijuana trade will be immune from federal prosecution,” and determinations “must proceed on a case-by-case basis.”4, 5 Massachusetts House of Representatives State Representatives Dave Rogers and Michael Connolly filed a bill called the “Refusal of Compliance Act,” which would essentially prevent local and state authorities from delivering Massachusetts residents to federal agents as long as they’re following state cannabis laws and have no federal warrant. Without City and State cooperation, federal prosecution would become extremely difficult. The bill is currently being reviewed by the Joint Committee on Marijuana Policy.6 4. State Agency Resource on Oversight and Enforcement The Cannabis Control Commission (CCC) The CCC’s mission is to safely, equitably, and effectively implement and administer the laws enabling access to medical and adult use marijuana. Additionally, they aim to enhance public health and safety by:7 • Developing and enforcing effective regulations • Developing and executing a program of continuing public education • Conducting and contributing to research on marijuana related topics • Using surplus funds to help address issues in these areas The work the CCC does is further enhanced by a 25-member Cannabis Advisory Board (CAB), incorporating a broad range of policy perspectives and expertise.1 The CCC issued a municipal guidance document related to the regulation of marijuana establishments to help officials understand the local role in the new recreational marijuana marketplace and to highlight key aspects of the agency’s draft marijuana regulations.8, 9

4 5. Recreational Use Concerns Discrimination Marijuana arrests have always disproportionately and negatively affected the black and brown communities. Data on marijuana use and arrests shows that black and white Americans use and sell marijuana at similar rates, but blacks are more than three and a half times as likely to be arrested for marijuana possession than whites:10 Massachusetts shares similar statistics. Legal reform in 2009 decriminalized the possession of small amounts of marijuana and proved effective at reducing the total number of arrests, but was ineffective at reducing the racial disparity:11 Under the new adult-use marijuana law, the use of marijuana is not legal in public spaces or where tobacco is banned, including restaurants, workplaces, streets, sidewalks, recreational

5 areas, public buildings, and school grounds. It is not a criminal offense but violations can still result in a civil citation and fine. Confusion around where and when smoking or otherwise ingesting or possessing marijuana is legal is common in all jurisdictions where it has been legalized, to include federal buildings such as courthouses and transportation facilities where use and/or possession of tobacco is still illegal.12 People who rent apartments and homes should look to their leases, landlords, management, and/or housing authorities to check if smoking of any sort is allowed (landlords cannot ban edibles and other forms of consumption though there is tension around the question of what sort of reasonable accommodations must be provided to a medical marijuana user in both the home and workplace). A particular twist to be aware of is when HUD subsidies are involved in a tenant’s rent, in which case marijuana use may run afoul of federal policies and lead to eviction or other punitive actions based on federal connections.13, 14 The law naturally favors home owners and disadvantages renters who are less likely to have access to safe, legal and permitted personal space to use marijuana. Black and brown residents are less likely to own their own their home than are white residents and, in general, ethnic minorities have less available and legal space to use marijuana. This will likely continue to be a contributor to the large racial disparity in marijuana enforcement actions and may put Cambridge Police Department officers in very awkward positions as they are called upon to keep people from smoking marijuana in public, especially in public parks, in what enforcement history indicates will most likely be a racially disproportionate manner. Providing legal spaces for people to ingest marijuana, whether via “Cannabis Cafes” and similar establishments that would allow cannabis consumption subject to local or state laws that would allow such consumption in specific public spaces is an as-of-yet untested proposition in Massachusetts. Arguably, absent a legal space for many people to smoke marijuana, the state law legalizing that act has minimal personal impact on many of Cambridge’s most vulnerable residents. Given the large amount of land in Cambridge held by public agencies such as the Department of Conservation and Recreation, the MBTA and the City itself, an integrated approach to determining where public smoking of marijuana might be made legal would probably add a layer of fairness to any education and enforcement campaigns. Similarly, coordination is needed with local colleges and universities to address their unique concerns about allowing drug use on campus, especially drug use that might have an impact on federal funding, an issue highlighted in a 2017 Harvard Crimson article.15,16 Second Hand Smoke and Teen Use The Center for Disease Control states that “secondhand marijuana smoke contains tetrahydrocannabinol (THC), the chemical responsible for most of marijuana’s psychological effects, and many of the same toxic chemicals in smoked tobacco” and can affect non-smokers, including children. A recent Boston Globe article highlighted the challenges legalization has created for multi-family buildings or homes that are close enough to each other for the pungent smell of marijuana to permeate a non-smokers domicile or yard, thus interfering with their

6 traditional enjoyment of their personal space, and, according to the CDC, possibly having negative health impacts on neighboring non-smokers. State and local regulations have no clear answer to questions of enforcement in these cases and the challenge is sufficiently new not have any significant body of case law to provide guidance.17 The impact of legalized recreational marijuana on teen marijuana use seems, thus far, to be unclear. While it’s still too early, and there are still not enough data points of legalized use states, to interpret the data with any certainty, numerous news articles indicate that it does not seem like teen marijuana use is increasing in states where recreational use is legal for people at least 21 years of age.18 Because use or possession of recreational marijuana is not legal for anyone under 21, enforcement and education efforts for this age group may have to be specially tailored to meet the challenging family dynamics, juvenile justice and other issues involved. Appealing names like “Pineapple Express” or “Purple Urkle,” combined with attractive edibles such as ‘gummy bears’ and other treats, add a layer of complexity to this concern that is not easily addressed. Along the same lines, legal use or possession of marijuana with children around may complicate a variety of family law matters.19, 20, 21, 22 Moving Vehicle Enforcement Motor vehicle operation enforcement and related accidents, one of the leading causes of death in the U.S., may become more complicated and demand more attention and resources with the increased legalization of both medical and recreational marijuana. Colorado, for example, has seen an increase in drivers who tested positive for marijuana involved in fatal crashes.23 A study including seven states and Washington, D.C., jurisdictions that have legalized recreational marijuana, found a 16% jump in pedestrian deaths in the first half of 2017.24 Experts do not want to jump to conclusions, as different studies take different factors into consideration, including fatal crashes versus total crashes, increases and decreases in population and driving and walking distances, and increased smartphone use, but it is impossible to say that increased marijuana legalization has not led to more dangerous driving conditions. 6. State and Local Considerations Education There was a lot of confusion swirling around Question 4 before it passed and much of this confusion continued after it passed. Some people believed this law would protect them from punishment for possessing and using marijuana, but voters had already passed decriminalization of under an ounce of marijuana in 2008 so the additional protections for possession were limited. Some believed the 2012 medical marijuana law was at-risk or would be expanded by the ballot initiative, but the new law does not affect medical marijuana at all.25 Others were unaware of the vast number of ways that marijuana can be inhaled and absorbed today, or that THC levels in

7 today’s marijuana are sometimes two, three, or ten times as potent as marijuana in the sixties.26 To combat this, the State House is calling on the CCC, Department of Public Health, and Executive Office of Public Safety and Security to launch an awareness campaign to accomplish the following goals:25 • Educate adults on responsible marijuana use and related rules • Educate youths on the dangers of children using marijuana, with a goal to decrease usage in the youth community • Educate the public about the dangers of marijuana-impaired driving Thus far, Massachusetts has not published educational materials around recreational marijuana use but there are a number of other organizations that provide information of varying quality, to include both government resources and private or non-profit, and possibly biased, websites. The Cambridge Public Health Department has information on recreational marijuana and how to talk to one’s teens about marijuana.27, 28, 29, 30, 31 Non-Profit Support Many communities across the state are turning to the Massachusetts Recreational Consumer Council (MRCC) as a resource for consumer education and safety. The MRCC aims to connect communities, legislators, and businesses through their recently launched educational campaign, Consume Responsibly Massachusetts. They provide educational materials on marijuana use (dosage, quality, methods of ingestion), quality controls in retail settings, and updated industry research, among other things.32 Boston Mayor Marty Walsh initially opposed legalization,33 but said the City of Boston would move forward in compliance with the new law, without bans, moratoriums, or zoning regulations. The City has created a landing page to serve as an education portal for residents, where it reviews the state law and addresses Boston-specific questions, which closely follow tobacco regulations:2

8 Colorado Marijuana legalization in Colorado posed new and unanticipated challenges. As one of the first states in the country to do so, resources and guidelines were not in place. With the complications varied laws between federal, state, and local, law enforcement took control and partnered the Colorado Association of Chiefs of Police with the Police Foundation and created a guidebook titled “Colorado’s Legalization of Marijuana and the Impact on Public Safety: A Practical Guide for Law Enforcement.”34 The guide addresses the multitude of issues Colorado has seen and experienced, and pulls from the professional judgements of both state and local government officials, attorneys, and law enforcement.

9 References 1. http://www.wmpolicy.com/wp-content/uploads/sites/17/2018/01/MAPrimer2.pdf 2. https://www.boston.gov/departments/311/marijuana-legalization-and-city-boston 3. https://www.justice.gov/opa/press-release/file/1022196/download 4. https://www.boston.com/news/local-news/2018/01/08/read-us-attorney-for-massachusetts- statement-on-federal-marijuana-enforcement 5. https://www.justice.gov/usao-ma/pr/statement-us-attorney-andrew-e-lelling-regarding-federal- marijuana-enforcement 6. https://www.citylab.com/equity/2018/01/massachusetts-could-become-a-pot-sanctuary/551195/ 7. https://mass-cannabis-control.com 8. https://www.mma.org/ccc-releases-guidance-document-local-officials-marijuana-law 9. https://www.mma.org/sites/default/files/resources/ccc_guidance_municipalities_rec_marijuana_a dult_use_updated_03162018.pdf 10. https://www.brookings.edu/blog/social-mobility-memos/2017/01/13/trump-won-white-voters- but-serious-inequities-remain-for-black-americans/ 11. https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf p 114, 156 12. https://hightimes.com/news/laws/places-to-smoke-in-weed-legal-states/ 13. https://www.bostonglobe.com/metro/2017/07/03/marijuana-and-don-for-fourth- july/nR0U2vp0hjb4hOVz1B1nVJ/story.html 14. http://www.mass.gov/eopss/docs/eops/sample-by-law-public-consump-marihuana.pdf 15. https://patch.com/massachusetts/beaconhill/pot-cafes-theatres-too-much-too-fast-baker- administration 16. http://www.thecrimson.com/article/2017/12/4/marijuana-in-the-square/ 17. https://www.bostonglobe.com/metro/2018/04/15/boston-area-condos-and-apartments-smell-pot- pits-neighbor-against-neighbor/xxk0881IcmAZ9TeWSLy0bJ/story.html 18. https://www.dailynews.com/2018/01/24/impact-of-marijuana-legalization-in-california-on-teens- uncertain/ 19. http://www.thecrimson.com/article/2017/12/4/marijuana-in-the-square/ 20. http://weedchefs.com/super-potent-cannabis-gummy-treats/ 21. http://abc7chicago.com/news/11-teens-ill-after-eating-drug-laced-gummy-bears/2192901/ 22. https://www.theguardian.com/society/2014/jun/16/colorado-legal-marijuana-children-parents- danger-issues 23. https://www.denverpost.com/2017/08/25/colorado-marijuana-traffic-fatalities/ 24. http://www.bostonherald.com/news/local_coverage/2018/03/harm_in_the_high_way_pedestrian_ fatalities_jump_in_states_with_legalized 25. Kane, Hannah. 04/05/2018. Mental Health Series: Marijuana, Edibles and Vapors. Middlesex Partnerships for Youth. 26. Lukas, Scott. 04/05/2018. Mental Health Series: Marijuana, Edibles and Vapors. Middlesex Partnerships for Youth. 27. https://www.drugabuse.gov/publications/research-reports/marijuana/how-does-marijuana-use- affect-school-work-social-life 28. https://www.colorado.gov/marijuana

10 29. https://www.drugfreeworld.org/drugfacts/marijuana/the-harmful-effects.html 30. http://www.cambridgepublichealth.org/lifestyle/substance-abuse-prevention/Q&A- Massachusetts-Recreational-Marijuana-Law-2016.pdf 31. http://www.cambridgepublichealth.org/lifestyle/substance-abuse- prevention/Marijuana_Talk_Kit.pdf 32. http://consumeresponsiblymassachusetts.com/ 33. http://www.wbur.org/radioboston/2016/03/09/walsh-opioids-housing 34. https://www.policefoundation.org/projects/colorados-legalization-of-marijuana-and-the-impact- on-public-policy-a-practical-guide-for-law-enforcement/