935 CMR 501.335 - Removal and Prohibition of Marijuana and Marijuana Products

(1) Pursuant to M.G.L. c. 94G, § 4(a½)(xxxi) and M.G.L. c. 94I, 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 501.335, "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 under 21 years of age.
(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, 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 501.105(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 501.000 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) An MTC subject to the order shall accept Registered Qualifying Patients' 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 this section may result in further administrative or disciplinary action against the Licensees or Registrants.

Notes

935 CMR 501.335
Adopted by Mass Register Issue 1403, eff. 11/1/2019. Amended by Mass Register Issue 1406, eff. 11/1/2019. Amended by Mass Register Issue 1434, eff. 1/8/2021.

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