Office of Cannabis Policy guidance on sale of tobacco products appears in conflict with state statute

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The Maine Office of Cannabis Policy (OCP) released a guidance memo reminding medical cannabis registrants and adult use licensees that they must obtain a retail license in order to sell tobacco products, including pre-rolled cannabis cigarettes. But portions of the guidance are contradictory to Maine statute and the OCP’s rules for the medical cannabis program.

On October 7, Erik Gundersen, formerly the director of the OCP, sent a guidance memo to Medical Use of Cannabis Program registrants and licensees of the Adult Use Cannabis Program about the sale of tobacco products.

According to Gunderson, under Maine law tobacco products are not only products “made from or derived from tobacco,” but also include any product containing nicotine meant to be “smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means.” Per the guidance memo, the definition of a tobacco product also includes “any component or accessory used in the consumption of a tobacco product.” 

According to Gunderson’s guidance, this includes pre-rolled cannabis cigarettes, plus electronic smoking devices, as well as pipes and liquids used in electronic smoking devices, as well as filters and rolling papers. 

However, Maine state statute excludes cannabis from the definition of tobacco products. Title 36, Chapter 704, of the Maine Revised Statutes (MRS) states that tobacco products do not include “any product that contains adult use cannabis subject to tax under chapter 723 [of Title 36].” That chapter relates to excise taxes on cannabis, and includes a tax for flowers, trims, immature plants and seedlings, mature plants, seeds, and purchases from registered caregivers and registered dispensaries. 

The statute also excludes “[a]ny product that contains cannabis or cannabis products subject to control under Title 22, chapter 558‑C” from the definition of a tobacco product. This part of statute relates to Maine’s Medical Use of Cannabis Act, which allows qualified patients to use harvested cannabis in any form. 

Gunderson’s memo notes that medical registrants and adult use licensees are required to obtain a retail tobacco license to sell and give away “tobacco products including electronic smoking devices, rolling papers, pre-rolled cannabis cigarettes, pipes and/or liquids used in electronic smoking devices, whether or not they contain nicotine.”

Obtaining a tobacco license requires maintaining a physical storefront. “If a registrant or licensee does not have a storefront, they will not be issued a retail tobacco license, and any sales of tobacco products by that registrant or licensee may result in criminal charges, imprisonment, and fines in excess of $1,000 per violation,” the OCP notes.

OCP also states registrants or licensees with a retail tobacco license cannot sell or give in any way a tobacco product, including pre-rolled cannabis cigarettes and rolling papers, to any person younger than 21 years old.

The OCP guidance creates uncertainty for medical cannabis patients and their caregivers, who serve patients under the age of 18 and can assist qualifying patients unable to care for themselves.

Under Maine statute, individuals aged 18 or older are considered qualified patients and can possess up to 8 pounds of harvested cannabis, possess cannabis paraphernalia, and furnish or offer to furnish up to 2.5 ounces of harvested cannabis for the medical use of another qualifying patient.

Caregivers have similar authority. Statute also gives them authority to “transfer in wholesale transactions for reasonable compensation or for no remuneration an unlimited amount of the mature cannabis plants grown by the caregiver over the course of a calendar year, including any cannabis products or cannabis concentrate manufactured from mature cannabis plants grown by the caregiver.”

Additionally, the rules for Maine’s medical cannabis program define paraphernalia to include objects “used or intended for use in ingesting, inhaling or otherwise introducing marijuana into the human body.” That includes but is not limited to pipes made from a number of materials, chamber pipes, carburetor pipes, electric pipes, and air-driven pipes.

While the state’s rules for medical cannabis use allow qualified individuals under the age of 21 and caregives to possess cannabis and cannabis paraphernalia, as well as to distribute it to other qualified patients, Gundersen’s guidance suggests a tobacco license may be required to do so in some circumstances.

OCP did not return a request for comment about whether it believes there is conflict between the guidance and OCP’s current rules for medical use cannabis, last amended February 1, 2018. The agency did begin drafting updated rules for the program in January 2022, but “chose to discontinue these efforts while after thorough consideration of the testimony and comments received through the public comment process.”

The guidance memo does state it “should not be construed as legal advice” and advises program participants to “consult their own counsel for questions regarding the applicability of this guidance to their specific operations.”

Gundersen resigned his position as OCP director the same day the guidance memo was issued. Vern Malloch, formerly deputy director of operations for OCP, is serving as interim director. 

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