935 Mass. Reg. 500.140

Current through Register 1520, April 26, 2024

Section 500.140 - Additional Operational Requirements for Retail Sale

(1) In addition to the general operational requirements for Marijuana Establishments required under 935 CMR 500.105 and security requirements provided in 935 CMR 500.110, Licensees engaged in retail sales shall comply with 935 CMR 500.140.

(2)On-premises Verification of Identification.

(a) On entry into the Premises of a Marijuana Retailer by an individual, a Marijuana Establishment Agent shall immediately inspect the individual's proof of identification and determine the individual's age. An individual shall not be admitted to the Premises, unless the Marijuana Retailer has verified that the individual is 21 years of age or older by an individual's proof of identification.

(b) On point-of-sale by an individual, a Marijuana Establishment Agent shall inspect the individual's proof of identification and determine the individual's age.

(c) In accordance with M.G.L. c. 94G, § 4(c)(3), a Marijuana Retailer may not acquire or record Consumer personal information other than information typically required in a retail transaction, which can include information to determine the Consumer's age. A Marijuana Retailer may not record or retain any additional personal information from Consumer without the Consumer's voluntary written permission, except as provided in (d) and (e).

(d) A Marijuana Retailer that has entered into Delivery Agreements with Delivery Licensees for the purpose of transacting home deliveries to Consumers shall establish a Pre-verification process for Consumers who intend to place orders for delivery with the Marijuana Establishment. A Marijuana Retailer that holds more than one Marijuana Retailer license may establish a process to share Pre-verification information about Consumers among their multiple locations for the purpose of enabling deliveries from any licensed location operated by the Marijuana Retailer; provided, however that information shall only be shared among locations upon the affirmative election by a Consumer. To comply with the requirements of Pre-verification, the Marijuana Establishment shall:

1. Require the Consumer to pre-verify with the Marijuana Establishment either in person or through a Commission-approved electronic means by presenting or submitting the Consumer's valid, unexpired government-issued photo identification; and

2. Examine the government-issued identification card and verify that the individual Consumer presenting or submitting the government-issued identification card is the individual Consumer that matches the government-issued identification card and that the individual Consumer is 21 years of age or older.

(e) A Marijuana Retailer shall collect and maintain relevant information about the individual Consumer, for the purpose of transacting a delivery and ensuring that the recipient of a delivery under 935 CMR 500.145 is legally allowed to receive Marijuana and Marijuana Products, which shall be limited to:

1. The individual's name;

2. The individual's date of birth;

3. The individual's address;

4. The individual's primary telephone number; and

5. The individual's email address.

(f) Any such information collected by the Marijuana Establishment shall be used solely for the purpose of transacting a delivery under 935 CMR 500.145 and shall be otherwise maintained confidentially.

(3)Limitation on Sales.

(a) In accordance with M.G.L. c. 94G, § 7, a Marijuana Retailer may not knowingly sell more than one ounce of Marijuana or its combined dry weight equivalent in Marijuana concentrate or Edibles to a retail customer per day.

1. One ounce of Marijuana flower shall be equivalent to five grams of active tetrahydrocannabinol (THC) in Marijuana concentrate including, but not limited to, Tinctures.

2. One ounce of Marijuana flower shall be equivalent to five hundred milligrams of active tetrahydrocannabinol (THC) in Edibles.

3. Topicals and ointments shall not be subject to a limitation on daily sales.

(b) A Marijuana Retailer may not sell Marijuana or Marijuana Products in excess of the potency levels established by 935 CMR 500.150(4); and

(c) A Marijuana Retailer shall demonstrate that it has a point-of-sale system that does not allow for a transaction in excess of the limit established in 935 CMR 500.140(3)(a) or the potency levels established in 935 CMR 500.140(3)(b).

(4)Unauthorized Sales and Right to Refuse Sales.

(a) A Marijuana Retailer shall refuse to sell Marijuana to any Consumer who is unable to produce valid proof of government-issued identification.

(b) A retailer shall refuse to sell Marijuana Products to a Consumer if, in the opinion of the Marijuana Establishment Agent based on the information available to the agent at that time, the Consumer or the public would be placed at risk. This includes, but is not limited to, the Consumer engaging in daily transactions that exceed the legal possession limits or that create a risk of diversion.

(c) A retailer may not sell to an individual more than one ounce of Marijuana or its dry weight equivalent in Marijuana concentrate or Edibles per transaction. A retailer may not knowingly sell to an individual more than one ounce of Marijuana or its dry weight equivalency per day.

(d) A retailer is prohibited from selling Marijuana Products containing nicotine.

(e) A retailer is prohibited from selling Marijuana Products containing alcohol, if sales of such alcohol would require licensure pursuant to M.G.L. c. 138.

(5)Recording Sales .

(a) A Marijuana Retailer shall only utilize a point-of-sale system approved by the Commission, in consultation with the DOR.

(b) A retailer may utilize a sales recording module approved by the DOR.

(c) A retailer is prohibited from utilizing software or other methods to manipulate or alter sales data.

(d) A retailer shall conduct a monthly analysis of its equipment and sales data to determine that no software has been installed that could be utilized to manipulate or alter sales data and that no other methodology has been employed to manipulate or alter sales data.

(e) A Marijuana Retailer shall maintain records that it has performed the monthly analysis and produce it on request to the Commission. If a retailer determines that software has been installed for the purpose of manipulation or alteration of sales data or other methods have been utilized to manipulate or alter sales data:

1. It shall immediately disclose the information to the Commission;

2. It shall cooperate with the Commission in any investigation regarding manipulation or alteration of sales data; and

3. Take such other action directed by the Commission to comply with 935 CMR 500.105.

(f) A retailer shall comply with 830 CMR 62C.25.1: Record Retention and DOR Directive 16-1 regarding recordkeeping requirements.

(g) A retailer shall adopt separate accounting practices at the point of sale for Marijuana and Marijuana Product sales, and non-Marijuana sales.

(h) The Commission and the DOR may audit and examine the point-of-sale system used by a retailer in order to ensure compliance with Massachusetts tax laws and 935 CMR 500.140(5).

(6)Consumer Education. A Marijuana Retailer shall make available educational materials about Marijuana Products to Consumers. A retailer shall have an adequate supply of current educational material available for distribution. Educational materials shall be available in commonly spoken languages designated by the Commission, which will include, but not be limited to, appropriate materials for the visually- and hearing-impaired. Such materials shall be made available for inspection by the Commission on request. The educational material shall include at least the following:

(a) A warning that Marijuana has not been analyzed or approved by the FDA, that there is limited information on side effects, that there may be health risks associated with using Marijuana, and that it should be kept away from children;

(b) A warning that when under the influence of Marijuana, driving is prohibited by M.G.L. c. 90, § 24, and machinery should not be operated;

(c) Information to assist in the selection of Marijuana, describing the potential differing effects of various strains of Marijuana, as well as various forms and routes of administration;

(d) Materials offered to Consumers to enable them to track the strains used and their associated effects;

(e) Information describing proper dosage and titration for different routes of administration. Emphasis shall be on using the smallest amount possible to achieve the desired effect. The impact of potency shall also be explained;

(f) A discussion of tolerance, dependence, and withdrawal;

(g) Facts regarding substance use disorder signs and symptoms, as well as referral information for substance use disorder treatment programs, and the telephone number for the Massachusetts Substance Use Helpline;

(h) A statement that Consumers may not sell Marijuana to any other individual;

(i) Information regarding penalties for possession or distribution of Marijuana in violation of Massachusetts law; and

(j) Any other information required by the Commission.

(7)Testing. No Marijuana Product, including Marijuana, may be sold or otherwise marketed for adult use that has not first been tested by Independent Testing Laboratories, except as allowed under 935 CMR 500.000. The product shall be deemed to comply with the standards required under 935 CMR 500.160. Potency levels derived from the Cannabinoid Profile, including the amount of delta-nine-tetrahydrocannabinol ()9-THC) and other Cannabinoids, contained within Finished Marijuana or Marijuana Product to be sold or otherwise marketed, shall be recorded in the Seed-to-sale SOR.

(8)Repackaging. Repackaged Marijuana shall comply with the labeling and packaging requirements under 935 CMR 500.105(5) and 500.105(6).

(9)Advance Contactless Order Fulfillment.

(a) A Marijuana Retailer may allow for advance contactless ordering of Marijuana and Marijuana Products by telephone, website or third-party platform, which shall be available for inspection prior to commencing operations and on request.

(b) Marijuana Retailer may fulfill advance orders through contactless means by not requiring contact between a Consumer and Registered Marijuana Agent.

(c) Any physical unit used for the purpose of the fulfillment of an advance contactless order (order) shall ensure that access to orders of Marijuana or Marijuana Products is limited to the Consumer who placed the order.

(d) Any physical unit used for the purpose of order fulfillment shall be located within the Marijuana Retailer's building and be bolted or otherwise permanently affixed to the Marijuana Establishment Premises.

(e) A Marijuana Retailer that adopts a contactless means of fulfilling orders shall have a written operations plan which shall be submitted to the Commission prior to commencing these operations and on request. The plan shall include a detailed description of how the Marijuana Retailer will ensure that advance contactless order fulfillment complies with the requirements of:

1.935 CMR 500.105(3)(b) and (c) for the safe storage of Marijuana and Marijuana Products;

2.935 CMR 500.110(1)(a) and M.G.L. c. 94G, § 4(c)(3) for the positive identification of individuals seeking access to the Premises of the Marijuana Establishment for the purpose of obtaining an order placed in advance to limit access solely to individuals 21 years of age or older;

3.935 CMR 500.110(5)(a)(4) for the video surveillance of the advance contactless order; and

4.935 CMR 500.140(8)(c) and (d).

(f) Orders placed in advance may not be retained in a physical unit used for the purpose of contactless order fulfillment overnight or outside of business hours.

(10)Product Database. A Marijuana Retailer that purchases wholesale Marijuana Products from a licensed Marijuana Product Manufacturer for the purpose of Repackaging Marijuana Products for sale to Consumers shall provide the Commission with the following information. This information may be used by the Commission for its Product Database.

(a) The Marijuana Retailer shall provide the following:

1. A photograph of a Finished Marijuana Product outside of, but next to, the Marijuana Product's packaging; provided, however that where single servings of a multi-serving product are unable to be easily identified because of its form, a description of what constitutes a single-serving shall be provided (e.g. a single-serving is a 1" x 1" square);

2. A photograph of the Marijuana Product inside packaging; and

3. The name of the Product Manufacturer that produced the Marijuana Product.

(b) Photographs submitted shall be electronic files in a JPEG format with a minimum photo resolution of 640 x 480 and print resolution of 300 DPI. Photographs shall be against a white background.

(c) Marijuana Retailers shall provide the information required under 935 CMR 500.140(8)(a) for each Marijuana Product it Repackages for sale prior to the product being made available for sale and shall update the information whenever a substantial change to packaging or label of the Marijuana Product occurs. For purposes of 935 CMR 500.140(10), a substantial change shall be a change to the physical attributes or content of the package or label.

(11) In addition to the written operating policies required under 935 CMR 500.105(1), a Marijuana Retailer shall maintain written policies and procedures which shall include:

(a) Policies and procedures for adequately tracking, recording, and documenting all Vendor Samples that the Marijuana Retailer receives from a Marijuana Cultivator or a Marijuana Product Manufacturer; and

(b) Policies and procedures for adequately tracking, recording, and documenting all Vendor Samples that the Marijuana Retailer provides to employees for the purpose of assessing product quality and determining whether to make the product available to sell, in compliance with 935 CMR 500.140(15).

(12)Vendor Samples.

(a) A Marijuana Retailer may receive a Vendor Sample of Marijuana flower from a Marijuana Cultivator pursuant to 935 CMR 500.120(13). A Marijuana Retailer may also receive a Vendor Sample of Marijuana Product from a Marijuana Product Manufacturer pursuant to 935 CMR 500.130(7). Receipt of a Vendor Sample under 935 CMR 500.140(12) shall not be considered a prohibited practice under 935 CMR 500.105(4)(b)20.

(b) Vendor Samples may not be sold to another licensee or Consumer.

(c) A Marijuana Retailer may provide the Vendor Samples it receives from a Marijuana Cultivator or a Marijuana Product Manufacturer to its Employees for the purpose of assessing product quality and determining whether to make the product available to sell the product. Vendor Samples may not be consumed on any licensed Premises.

(d)Vendor Sample limits. A Marijuana Retailer is limited to providing the following aggregate amounts of Vendor Samples to all Employees in a calendar month period:

1. Four grams per strain of Marijuana flower and no more than seven strains of Marijuana flower;

2. Five grams of Marijuana concentrate or extract including, but not limited to, Tinctures;

3. Five hundred milligrams of Edibles whereby the serving size of each individual sample does not exceed five milligrams and otherwise satisfies the potency levels set forth in 935 CMR 500.150(4); and

4. Five units of sale per Cannabis product line and no more than six individual Cannabis product lines. For purposes of 935 CMR 500.140(15), a Cannabis product line shall mean items bearing the same Stock Keeping Unit Number.

(e) Upon providing a Vendor Sample to an employee, the Marijuana Retailer shall record:

1. The reduction in quantity of the total weight or item count under the unique alphanumeric identifier associated with the Vendor Sample;

2. The date and time the Vendor Sample was provided to the Employee;

3. The agent registration number of the employee receiving the Vendor Sample; and

4. The name of the Employee as it appears on their agent registration card.

(f) All Vendor Samples provided by a Marijuana Retailer to its employees shall also be entered into the point-of-sale system and shall count against the individual employee's daily purchase limit, if applicable, consistent with 935 CMR 500.140(3).

(13)Sale of Marijuana Vaporizer Devices.

(a) Marijuana Retailers offering Marijuana Vaporizer Devices for sale to Consumers shall include signage at the point of sale, that is legible and enlarged and contains the following statements:

1. "Marijuana Vaporizer Devices have been tested for Vitamin E Acetate and other contaminants, with no adverse findings. WARNING: Vaporizer Devices may contain ingredients harmful to health when inhaled."

2. "Consumers shall have access to the test results of Marijuana Vaporizer Devices including copies of any Certificates of Analysis provided by the device's manufacturer."

(b) Marijuana Retailers shall provide a physical insert to Consumers that accompanies all purchased Marijuana Vaporizer Devices that states, including capitalization and emphasis, the following: "Marijuana Vaporizer Devices have been tested for Vitamin E Acetate and other contaminants, with no adverse findings. WARNING: Vaporizer Devices may contain ingredients harmful to health when inhaled."

(c) The sale of disposable and reusable vaporizer pens and devices shall be accompanied by a product insert identifying the materials used in the vaporizer device's atomizer coil (e.g., titanium, titanium alloy, quartz, copper, nichrome, kanthal, or other specified material), and manufacturer identification of the device hardware, cartridge, battery and other components;

(d) A Marijuana Retailer shall make available the information contained in 935 CMR 500.105(5)(c)6. in the product description at the point of sale and as part of any product list posted on the Marijuana Retailer's website or Third-party Technology Platforms or applications employed for preordering or delivery.

(e) A Marijuana Retailer shall retain all records of purchases from any Product Manufacturer or supplier of any ingredient, additive, device, component part or other materials provided to the Marijuana Retailer about Marijuana Vaporizer Devices sold at retailers. Such records shall be made available to the Commission upon request.

(14)Physical Separation of Marijuana and MIPs or Marijuana Products for Medical- or Adultuse. A CMO shall provide for physical separation between medical and adult use sales areas. Separation may be provided by a temporary or semipermanent physical barrier, such as a stanchion, that, in the opinion of the Commission, adequately separates sales areas of MIPs for medical-use from sales areas of Marijuana products for adult use for the purpose of Patient Confidentiality.

(a) A CMO shall provide for separate lines for sales of Marijuana or MIPs for medical-use from Marijuana Products for adult use within the sales area, provided that the holder of a patient registration card may use either line and may not be limited only to the medical use line, so long as the CMO can record the patient's transaction in accordance with 935 CMR 501.140(5).

(b) A CMO shall additionally provide a patient consultation area, an area that is separate from the sales floor that is enclosed to allow privacy and for confidential visual and auditory consultation with Qualifying Patients.

(c) A CMO's patient consultation area shall have signage stating, "Consultation Area". The private consultation area shall be separate from the sales area. It shall be accessible by a Qualifying Patient or Caregiver without having to traverse a Limited Access Area.

(d) A CMO shall use best efforts to prioritize Patient and Caregiver identification verification and physical entry into its retail area.

(15)Patient Supply .

(a) A CMO shall ensure access to a sufficient quantity and variety of marijuana products, including marijuana, for patients registered under 935 CMR 501.000: Medical Use of Marijuana.

1. Where the CMO has been open and dispensing for a period of less than six months, the license shall reserve 35% of the MTC's marijuana products.

2. Where the CMO has been open and dispensing for a period of six months or longer, the licensee shall maintain a quantity and variety of marijuana products for patients registered under 935 CMR 501.000: Medical Use of Marijuana, sufficient to meet the demand indicated by an analysis of sales data collected by the licensee during the preceding six months in accordance with 935 CMR 500.140(5), and 935 CMR 501.140(5): Recording Sales.

(b) Marijuana products reserved for patient supply shall, unless unreasonably impracticable, reflect the actual types and strains of marijuana products documented during the previous six months. If a substitution must be made, the substitution shall reflect as closely as possible the type and strain no longer available.

(c) On a biannual basis, the CMO shall submit to the Commission an inventory plan to reserve a sufficient quantity and variety of medical use Marijuana Products for Registered Qualifying Patients, based on reasonably anticipated patient needs as documented by sales records over the preceding six months. On each occasion that the supply of any product within the reserved patient supply is exhausted and a reasonable substitution cannot be made, the CMO shall submit a report to the Commission in a form determined by the Commission.

(d) Marijuana Products reserved for patient supply shall be either maintained on-site at the retailer or easily accessible at another location operated by the licensee and transferable to the retailer location within 48 hours of notification that the on-site supply has been exhausted. CMOs shall perform audits of available patient supply on a weekly basis and retain those records for a period of six months.

(e) The Commission shall, consistent with 935 CMR 500.301 or 935 CMR 501.301: Inspections and Compliance, inspect and audit CMOs to ensure compliance with 935 CMR 500.140. The Commission may, in addition to the issuance of a deficiency statement under 935 CMR 500.310 or 935 CMR 501.310: Deficiency Statements and a plan of correction under 935 CMR 500.320 or 935 CMR 501.320: Plans of Correction, demand that the CMO take immediate steps to replenish its reserved patient supply to reflect the amounts required under 935 CMR 500.140(15)(a) or 935 CMR 501.140(13)(a). Failure to adequately address a deficiency statement or follow a plan of correction shall result in administrative action by the Commission pursuant to 935 CMR 500.450 and 935 CMR 500.500 or 935 CMR 501.450: Medical Marijuana Treatment Center Registration or License: Grounds for Suspension Revocation, and Denial of Renewal Application and 935 CMR 501.500: Hearings and Appeals of Actions on Registrations or Licenses.

(f) CMOs may transfer marijuana products reserved for medical-use to adult-use within a reasonable period of time prior to the date of expiration provided that the product does not pose a risk to health or safety.

(16)Undeliverable Marijuana and Marijuana Products. Any Finished Marijuana Product that is undeliverable by a Marijuana Courier or is refused by the Consumer shall be transported back to the originating Marijuana Retailer that provided the product once all other deliveries included on a delivery manifest have been made. The Marijuana Retailer shall ensure that a Registered Marijuana Agent remains at the premises to receive any undeliverable Marijuana or Marijuana Product from a Marijuana Courier. A process for ensuring that undelivered Marijuana and Marijuana Products can be returned to the Marijuana Retailer by the Marijuana Courier shall be a term of the Delivery Agreement.

(17)Prohibition on Monopolies.

(a) It shall be a violation of, 935 CMR 500.000, for any Marijuana Retailer to or attempt to monopolize, or combine or conspire with any other person or entity including, but not limited to, a Third-party Technology Platform Provider, to monopolize any part of licensed activities authorized under 935 CMR 500.000.

(b) It shall be a violation of these regulations, 935 CMR 500.000, for any Marijuana Retailer engaged in activities authorized under 935 CMR 500.000 to make a contract for services with a Third-party Technology Platform Provider for the listing of a Marijuana Retailer's Finished Marijuana Products on the condition, agreement or understanding that the parties to the contract shall not deal in Marijuana or Marijuana Products, either generally or specific brands or categories of Finished Marijuana Products, of a competitor or competitors of the parties where the effect of such contract or such condition, agreement or understanding may be to lessen substantially competition or tend to create a monopoly in any activity engaged in under 935 CMR. 500.000.