BOSTON — More than a month after Governor Charlie Baker issued a statewide ban halting the sale of e-cigarettes and vaping related products, a Massachusetts Superior Court judge has ruled that the ban does not apply to medicinal marijuana products.

Suffolk Superior Court Judge Douglas Wilkins ruled Tuesday that Governor Baker’s regulations are invalid for medical marijuana card holders, claiming the state may not impose the prohibition and further indicating that the Department of Public Health "likely exceeded its authority by banning vaping products used by medical marijuana card holders."

The decision comes after a group advocating on behalf of medical marijuana patients intervened in objection of the ban, arguing that only the Cannabis Control Commission, not the DPH, has the authority to regulate the sale of legal marijuana subject to a 2017 law.

"DPH now purports to have the authority to ban the vaporization of all marijuana products based on an alleged public health emergency,” stated the group in a memo during the filing.

Adding, ”With the stroke of its pen, DPH purports to abrogate the Legislative mandate that marijuana vaping oils be legal and regulated by the CCC...This it cannot do.”

"In crafting legislation to create the CCC and implement a new regulatory scheme concerning marijuana, the legislature determined that it was likewise appropriate for the CCC and, not DPH, to regulate the medical marijuana industry," Wilkins stated in the order. "The legislature did not want DPH to regulate medical marijuana, but the emergency regulations do just that. The conflict with the legislative scheme could not be clearer."

"Like any Massachusetts agency the CCC itself has full authority to adopt emergency regulations. It may choose to promulgate the emergency regulations in whole or in part...The choice needs to come from CCC, not DPH or this court."

Wilkins ordered that the restrictions for marijuana patients be lifted by next Tuesday, November 12. The CCC is scheduled to meet Thursday to discuss their own regulations barring the temporary retail sale of vaping related products.

The CCC has refused any other comment at this time.

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