Current through Register 1531, September 27, 2024
(1) Pursuant to
M.G.L. c. 94G, § 4(a1/2)(xxxi), the Commission or a Commission
Delegee may order the removal or prohibition of sales by more than one Licensee
of categories of product types, of specific product types or of specific brands
of products after notice and a determination that Marijuana, Marijuana
Products, and Marijuana Accessories (for the purposes of
935
CMR 500.335"Product"), which based on
preliminary evidence, pose a substantial risk to the public health, safety or
welfare including, but not limited to, that the product is especially appealing
to Persons younger than 21 years old.
(a) The
Commission may vote to initiate a complaint about a Product and refer that
complaint to the Executive Director and Enforcement staff for
investigation.
(b) In consultation
with the Executive Director, Enforcement staff may conduct an investigation and
make a recommendation as to the Removal of Product. The recommendation shall be
based on credible and reliable evidence and provide a specific description of
the scope of removal and specify whether the removal or prohibition on sales
applies to one of the following:
1.
Category of Product Type(s). A type of Product
including, but not limited to, Marijuana seeds, Marijuana Clones, Marijuana
Edibles, Beverages, topical products, ointments, oils, Tinctures, oral dosage
forms or any other product identified by the Commission or a Commission
Delegee.
2.
Specific
Product Type(s). A specific type of Product within a category of
Products, but not including other types of Product within the same
category.
3.
Specific
Brand of Product(s). One or more specific Product types or
category types Manufactured by a Marijuana Product Manufacturer or a specific
Product type or category type Manufactured by multiple Marijuana Product
Manufacturers subject to an agreement including, but not limited to, a
partnership, product licensing, distribution, branding, Advertising, marketing
or sales agreement.
(2) After receiving a recommendation from
Enforcement staff, the Executive Director may act to address the substantial
risk to the public health, safety or welfare including, but not limited to:
(a) Refer the matter to a Hearing Officer
with expertise to evaluate scientific evidence to conduct an informal
hearing;
(b) If credible and
reliable evidence has been evaluated and found to meet the standard of a
substantial risk to public health, safety or welfare if one is not yet issued,
order the quarantine or Removal of Product or prohibition on sales of a Product
pending consideration by a Hearing Officer; or
(c) Refer the matter to the
Commission.
(3) When a
matter is referred by the Executive Director, the Hearing Officer may conduct
an informal hearing.
(a) If necessary and in
consultation with the Executive Director, the Hearing Officer may develop a
process for the purpose of identifying the Licensees and Registrants that may
be impacted by a current or future order including, but not limited to,
identifying those Licensees and Registrants to whom providing adequate notice
and an opportunity to be heard shall be given.
(b) The Hearing Officer shall exercise
discretion in admitting and weighing evidence including, but not limited to,
testimony and evidence from:
1. Licensees and
Registrants; and
2. Subject-matter
experts.
(c) The Hearing
Officer shall issue findings of fact and make a recommended decision to the
Executive Director.
(d) To the
extent that the Hearing Officer recommends that Products be removed or
prohibited, this recommendation shall be based on credible and reliable
evidence that the Product poses a substantial risk to the public health, safety
and welfare.
(4) The
Executive Director may refer the matter to the Commission and make a
recommendation.
(5) On referral by
the Executive Director, prior to issuing any order, the Commission shall
deliberate on the Executive Director's recommendation at a public meeting of
the Commission.
(a) If there is a
recommendation that the Products be removed and prohibited, this recommendation
shall be based on credible and reliable evidence that the Product poses a
substantial risk to the public health, safety and welfare.
(b) An order shall require a vote by the
Commission.
(c) The Commission or a
Commission Designee shall send written notice of the action taken against an
identified Licensee or Registrant and the basis for that action. The notice
shall include, but not be limited to, the following information:
1. the Commission's statutory and regulatory
authority, including its jurisdiction over the subject matter; and its
authority to take action with regards to the License or registration;
2. the factual basis for that
action;
3. the extent to which the
product poses a substantial risk to the public health, safety and welfare;
and
4. the current restrictions on
the Licensee's or Registrant's operations or sales or other use of Products, if
any, including the method and timing of the Removal of Product including, but
not limited to, whether the Product shall be destroyed in accordance with
935
CMR
500.105(12).
(d) The Commission or a Commission Designee
may modify, amend or rescind a notice on condition(s) just to all the
parties.
(6) On receipt
of the order, the Licensee and its associated agents will immediately comply
with the requirements of the order and, if requested by the Commission, post
notice at public entrances to the establishment or other notice in a form and
manner determined by the Commission.
(7) The order shall be transmitted
immediately to all other Licensee(s) or Registrant(s) that may reasonably be
affected by the order by electronic and certified mail.
(8) The order may be posted on the
Commission's website.
(9) It shall
be a violation of
935 CMR
500.000 for Licensees to produce, sell or otherwise
make available the categories of Product Types, Specific Product Types or
Specific Brands of Products identified in the order.
(10) A Marijuana Establishment subject to the
order shall accept Consumer returns of unused and unopened product for a period
of 30 days after the effective date of the order.
(11) The failure to cooperate with provisions
of 935 CMR 500.335 may result in
further administrative or disciplinary action against the Licensees or
Registrants.
