Massachusettts Medical Marijuana Debilitating Medical Condition

Debilitating Medical Condition Under the Massachusetts Medical Marijuana Program May Not be Amended by the Department of Public Health

The Department of Public Health is inviting comment about what should qualify as a debilitating medical condition under the medical marijuana Act, and many concerned patients are speaking up about it at the Listening Sessions occurring across the state during the month of February.  An analysis of the law dictates that the DPH may not amend the law by specifying a finite set of conditions that qualify.

Massachusetts Ballot Measure known as Question 3 from the November 2012 ballot was introduced as an initiative petition.  See the Secretary of the Commonwealth of Massachusetts 2012 Information for Voters on Question 3.  The Constitution of the Commonwealth of Massachusetts, Part the First, Article IV states in relevant part,

“[t]he people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state. . . .”

Constitution of the Commonwealth of Massachusetts, Part the First, Article IV.

Concerning an initiative petition that is submitted to the people at a state election, as Question 3 was, the amended Constitution states in relevant part,

“[i]f it shall be approved by voters equal in number to at least thirty per cent of the total number of ballots cast at such state election and also by a majority of the voters voting on such law, it shall become law, and shall take effect in thirty days after such state election or at such time after such election as may be provided in such law.”

Constitution of the Commonwealth of Massachusetts, Articles of Amendment, Article LXXXI, Section 2.

As we know, Question 3 was approved by the requisite number of voters.  The final piece to the law behind the argument that the DPH may not define a finite set of debilitating medical conditions that qualify for medical marijuana is the fact that only the General Court, may repeal or amend a law approved by the people, and even then the people have the power of referendum.  Constitution of the Commonwealth of Massachusetts, Articles of Amendment, Article XLVII, General Provisions, VI.

Therefore, following the Commonwealth’s Constitution, only the General Court may repeal or amend a law approved by the people.  While the DPH exercises great power as per the language of the Act, they may not amend sections that are not enumerated as being subject to their further regulations.  The language of the portion of the Act in question is,

“(C) “Debilitating medical condition” shall mean:
Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician.”

An Act for the Humanitarian Use of Medical Marijuana, Section 2(C).

Nowhere under section 2(c) of the Act does it grant the DPH the authority to determine what other conditions may qualify a patient for the medicinal use of cannabis.  Therefore, the DPH simply does not have the authority to remove the “other conditions” language and create a finite list.  Unfortunately, this may need to be sorted out in the courts.  As in California when in 2004 the legislature implemented restrictions on cannabis quantities that were not present in the 1996 voter initiative that created medical marijuana in that state.  It took over a decade for the litigation to make its way through the courts, and during that time people became felons simply because they had a bumper crop.   Most of the Massachusetts law is written so as to avoid these issues, but it seems under the issue of what debilitating conditions apply, the DPH seems to think they have a power not expressly enumerated to them.

As usual, readers you are encouraged to weigh in on this analysis.

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