BOSTON – A judge has partially lifted the state’s ban on THC vaping products by allowing medical marijuana patients to vape crushed pot flower.
On Thursday, Suffolk County Superior Court Judge Douglas Wilkins ruled that medical marijuana patients should have access to alternatives to vaping THC oils and other additives that have been associated with a nationwide outbreak of vaping-related lung illness that has sickened hundreds and killed 33 people.
“Depriving people in severe pain of the means to alleviate that pain to the safest form of vaping is an immense irreparable harm,” Wilkins wrote in a seven-page ruling.
In his ruling, Wilkins declined to lift the ban on vaping products entirely but noted that the Baker administration hasn’t presented “evidence specifically linking the vaping of crushed cannabis flower to the outbreaks.”
Wilkins’ ruling comes in response to a complaint last week by four medical marijuana patients, including a 66-year-old Ipswich man, who have joined a lawsuit filed by the Vapor Technology Association on behalf of several vaping stores seeking to overturn Gov. Charlie Baker’s four-month ban on sales of the products.
The patients argued that the ban, which covers all vaping products, has blocked access to their medication, forcing them to turn to the black market or other sources.
Wilkins specifically noted the situation facing Frank Shaw, of Ipswich, who uses medical marijuana vaping products to relieve pain in his feet from neuropathy, back pain and insomnia.
“When he runs out, his options are limited: suffer intense pain or do what he should not do under the law namely go to the black market or purchase items out of state,” Wilkins wrote. “The black market option is riskier than vaping lawful marijuana products bought in Massachusetts.”
Baker announced the ban on Sept. 24 in response to the national outbreak of lung disease that has been tied to vaping products. The ban effectively shut down hundreds of vape stores that sell flavored nicotine-based products and forced recreational and medical marijuana dispensaries to remove vaping items from their shelves.
Roughly 60,000 patients are certified to buy medical marijuana to treat pain, cancer symptoms and other conditions from more than 50 state-licensed dispensaries.
A dry herb vaporizer, which will be allowed for medical patients under the judge’s ruling, is a device that heats up cannabis flowers to create a vapor that is inhaled by the user.
Wilkins noted that THC oils and additives associated with vaping cartridges are among the potential causes of the outbreak. “It may turn out that some of those oils and additives are relatively harmless, but there is no reason to take that risk if safer and fully effective alternatives are available,” he wrote.
Meanwhile, state Appeals Court Judge Kenneth Desmond ruled late Wednesday that the Baker administration will likely have to comply with Wilkins’ order on Monday requiring the state to enact emergency regulations to support the ban, or allow sales of vaping products to resume next week.
“The administration declared a public health emergency and imposed a temporary ban on all vape products to allow medical professionals to better understand what is making people sick and resulting in deaths in some cases, and is working on next steps with the Attorney General’s Office to ensure the ban remains in place,” Baker spokesman Terry MacCormack said in a statement.
Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites. Email him at firstname.lastname@example.org