Yesterday, several adult-use marijuana establishments, and one medical marijuana patient, filed suit against Massachusetts Governor Charlie Baker requesting preliminary and permanent injunctive relief challenging his Covid-19 Order No. 13 and Covid-19 Order No. 21 (Orders) issued in relation to the current COVID-19 pandemic.

The Orders closed adult-use retail establishments at noon on March 24, and won’t allow them to reopen, at the earliest, until May 4.  The Orders, however, declared that medical marijuana establishments (MME) and liquor stores were “essential businesses” and permitted that they remain open during the crisis. The public rationale the Governor provided for this decision was to deter out of state residents from coming to Massachusetts to buy weed, as it is the only state in the region to allow recreational sales.  Specifically the Governor stated:

If we make recreational marijuana available, we are going to have to deal with the fact that people are going to come here from all over the place, across the northeast and create issues for us with respect to the fundamental issue we are trying to solve for here — which is to stop the spread…

Massachusetts seems to be the only state that has deemed medical marijuana essential but adult-use/recreational marijuana non-essential.  States such as California, Colorado and Illinois have declared both medicinal and recreational establishments “essential,” and states like Michigan and Alaska have permitted licensed cannabis businesses to remain open (for a more detailed analysis regarding the current status of cannabis businesses around the country see the Fox Cannabis Group’s alert, which can be found here).

The crux of the plaintiffs’ argument is that the Orders are an equal protection violation under both the United States and Massachusetts Constitutions.  Plaintiffs allege that “by classifying adult-use marijuana establishments as non-essential, while classifying similar regulated businesses—such as liquor stores and medical marijuana dispensaries—as essential, the Executive Orders violate the constitutional rights of the plaintiffs and exceed the Governor’s executive authority.” They argue that there is no legitimate or rational basis to allow liquor stores and MMEs to remain open while mandating that adult-use stores close their doors, or to differentiate between the people who frequent those stores.

Despite Massachusetts adult-use operators pledging that they are willing to follow social distancing guidelines, implement curbside pickup and appointment only sales, and only sell to Massachusetts residents, Governor Baker has stuck with his decision in the Orders.  As a result, the plaintiffs say the Orders have effectively closed 43 licensed stores, employing approximately 8,000 people, and prevented at least 21 provisionally licensed stores from opening.