As the state’s recreational marijuana industry fights to be included amongst what is considered essential business in Massachusetts, a group of adult-use shops has filed a lawsuit against Gov. Charlie Baker.

Last month, Baker ordered that non-essential businesses must close amid the COVID-19 pandemic. While medical marijuana businesses are considered essential, recreational shops had to close their doors.

“There’s no industry more regulated than the marijuana industry. None. Not the liquor industry, not the banking industry,” said Ellen Rosenfeld, a co-owner of CommCan, one of the marijuana businesses that launched the lawsuit.

Baker’s order forced 43 recreational marijuana shops to stop operations through at least May 4 as the state tries to slow the spread of COVID-19, the disease caused by the new coronavirus. The decision has led some companies to lay off employees. Other businesses worry they will not be able to continue operations after the ban.

The governor has reiterated during press conferences that one reason to keep recreational marijuana shops closed is to stop out-of-state buyers from coming into Massachusetts to make purchases.

“The potential that the coronavirus is going to pour into the borders through adult-use dispensaries, I think he’s catastrophizing it,” said Rosenfeld, who added that most of her customers live within 20 minutes of the dispensary.

The suit, filed this week in Suffolk Superior Court, argues that Baker’s ban stops Massachusetts residents from being able to access regulated marijuana, which many people use as medication even if they are not registered with the state’s medical program.

“This includes military veterans and other persons who rely on marijuana for medical treatment but are reluctant to access the Commonwealth’s medical marijuana program because they fear this might deprive them of federal benefits; and, persons on Nantucket, where The Green Lady Dispensary is the only legal source of marijuana products,” the suit reads.

The suit was filed by CommCan, The Green Lady Dispensary, AscendMass, MassGrow, Bloom Brothers and Stephen Mandile, an Iraq veteran who uses recreational marijuana as medicine and is also an Uxbridge selectman.

“It’s been well over a year and a half now, people relying on those dispensaries to be open. They are a retail store, just like any other grocery store or package store,” Mandile said. “I don’t see why we have to punish the entire industry.”

A spike in new medical marijuana patient registrations indicates that some consumers had been using the recreational market to purchase medicine. As recreational sales came to a halt, the state Cannabis Control Commission said it saw more than 1,300 new patient registrations from March 23 to April 1. In the 10 days before that period, the commission received 500 patient registrations.

Mandile said that some people who use marijuana as medicine do not want to register as a patient to maintain their privacy. Some can’t afford the cost of going to a referral clinic, which can cost between $150 and $300, he said.

“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,” reads the suit, which seeks declaratory and injunctive relief from the court to permit adult-use sales.

Rosenfeld noted that her dispensaries, like many others in Massachusetts, took steps to address the pandemic, like increasing sanitation, early on.

Not only are the marijuana businesses themselves losing out on revenue during the ban, but the state is missing out on tax revenue from sales, the lawsuit notes.

Other states where marijuana is legal, including California, Colorado, Illinois, Nevada, and Washington, have allowed recreational stores to operate during the pandemic.

Though recreational shops are currently closed, the CCC this week allowed for wholesale transfers of existing adult-use marijuana to medical operators to help support the medical supply chain.

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