Published April 19, 2019

MELROSE — Ward 5 Alderman Shawn MacMaster is pushing for the City of Melrose to regulate the retail sale of CBD products. MacMaster, a career public safety official who replaced Mayor Gail Infurna on the Board of Aldermen over a year ago, became aware of a regulatory gap in state law which allows manufacturers of CBD products to profit from unregulated sales, including products that target children and teenagers with deceptive marketing strategies.

Cannabidiol (CBD) is one of several compounds produced by the Cannabis plant. Although CBD oil can be extracted from various Cannabis species, it most commonly comes from hemp. Hemp has lower amounts of THC and higher concentrations of cannabidiol, leaving it unregulated by the current marijuana market.

“My efforts should not be construed as a statement against CBD,” said MacMaster. “I certainly recognize and acknowledge that CBD serves a legitimate medical purpose. Rather this is a statement about products being sold in Melrose that purport to be CBD with absolutely no governmental oversight whatsoever. At its core, this is a consumer protection and public health issue that needs to be addressed.”

MacMaster began advocating for the City to set regulations last June and discussed the issue at length during a February Board of Health meeting. After a presentation by MacMaster, followed by a discussion with commissioners and the City’s director of public health, the Board of Health voted in February to draft what would have been the most restrictive CBD regulations in the Commonwealth of Massachusetts to date. Those regulations would have required the selling of any and all CBD products to occur in adult-only tobacco stores. As Melrose does not have an adult-only tobacco store and the number of tobacco licenses in the City is capped at the current limit of 12, the regulations would have essentially amounted to a moratorium.

Under state law, the Massachusetts Department of Agricultural Resources (MDAR) has regulatory oversight over industrial hemp. State law makes a distinction between hemp and marijuana, where anything with a THC concentration exceeding 0.3 percent is considered marijuana. Charged with regulating hemp at every stage, from the selection of seeds through the selling of products, MDAR has yet to promulgate formal regulations. To date, MDAR has issued interim protocols for growers and processors only; regulations, however, are not currently in place for the packaging, marketing, distribution, wholesale, and retail sales of hemp products, including CBD.

In a memo to the Melrose Board of Health dated February 13, 2019 (see sidebar), MacMaster wrote that “as products derived from industrial hemp require regulatory oversight from MDAR, an argument can be made that what is currently being sold in Melrose, and elsewhere, is illegal under state law. With no licenses or registrations having been issued to date by MDAR (beyond a limited number of licenses issued to growers), businesses selling CBD derived from hemp have not been approved to do so. Because their products have not been tested and certified by MDAR, the source of the CBD and THC potency are unknown. With no way of verifying that the THC levels contained in these products fall below the required 0.3 percent threshold, what is currently being sold in Melrose convenience stores may, in fact, be marijuana. With no formal regulations in place and an interim policy that fails to address the distribution and sale of CBD, an effort must be made to mitigate the risks associated with the sale of unregulated products.”

The regulations drafted by the Melrose Board of Health were ready to be passed pending a public hearing last Thursday. At the hearing, MacMaster testified, “The problem is that retail licenses are required by the state, but are not being issued; and there is absolutely no timeframe for when this might occur. I believe that this compels us, as a city, to act accordingly to protect the health and safety of our residents, especially the most vulnerable – that being our children. At the municipal level, we find it necessary to regulate tobacco, alcohol, marijuana, food and other products – products that consumers ingest or inhale. And we do this despite the fact that these products are already regulated at other levels of government. Why shouldn’t the same standards apply to CBD products – products that are not currently regulated at all?”

Some residents in attendance testified about the personal benefits of using CBD, while others suggested that regulations would hurt businesses. MacMaster argued that regulations need not be indefinite, and could be repealed by the Board of Health when MDAR eventually promulgates statewide regulations. He also explained that other outlets exist for residents to purchase CBD outside of Melrose.

At Thursday’s hearing, one member of the public explained that CBD products do undergo testing, referencing a colorful package of gummy bears with cartoon-like characters that MacMaster brought to the hearing. But as MacMaster explained, the testing of hemp and of products derived from hemp still require oversight from MDAR. “There is an inherent conflict of interest that arises when a manufacturer gets to choose who tests the products off of which the manufacturer will a make a financial profit,” said MacMaster. “That is explicitly why MDAR requires independent testing.”

The Board of Health, which did not reach a decision on Thursday, seemed inclined to offer a compromise of sorts, considering regulations similar to that of tobacco. Tobacco sales in Melrose are prohibited to anyone under the age of 21, and business owners are required to place products behind the counter. MacMaster said if the Board of Health does not pass robust regulations, he may take the matter before his colleagues on the Board of Aldermen.

“Certainly, some regulations are better than none, and I appreciate the Board of Health recognizing that this is a significant problem and for its willingness to set regulations,” said MacMaster. “But this is not a health issue that should be defined by age. If someone takes CBD to cope with a health problem, they deserve to know, as a consumer, that what they’re purchasing and consuming is in fact CBD. Right now, it could be absolutely nothing or it could be marijuana – we have no way of knowing.”

Over the last year, MacMaster has also been in direct contact with MDAR, the Office of State Senator Jason Lewis, and the Massachusetts Chiefs of Police Association. “This is an issue that transcends Melrose,” said MacMaster. “But we have an opportunity in Melrose to be a leader on this front, and I’ll continue initiating these conversations and advocating for what is in the best interests of the public.”