The Office of the Attorney General recently issued a guidance memorandum that stated Caregivers and Dispensaries can sell pre-rolls or joints without obtaining a Retail Tobacco License issued by Maine's Department of Health and Human Services. This guidance allows Caregivers and Dispensaries to sell pre-rolls and joints to qualifying patients 18 years old or older. In short, Maine’s Retail Tobacco Sales Statute does not apply to pre-rolls or joints filled with cannabis that are sold under Maine's medical cannabis program.
Having said that, this guidance does not change the State's position that vape cartridges filled with cannabis concentrate is considered a "tobacco product" under the Retail Tobacco Sales Statute. What is a “tobacco product?” Under the Retail Tobacco Sales Statute, a “tobacco product” is defined as:
“Any product that is made from or derived from tobacco, or that contains nicotine, that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled or ingested by any other means, including, but not limited to, a cigarette, a cigar, a hookah, pipe tobacco, chewing tobacco, snuff or snus. "Tobacco product" also means an electronic smoking device and any component or accessory used in the consumption of a tobacco product, such as filters, rolling papers, pipes and liquids used in electronic smoking devices, whether or not they contain nicotine. "Tobacco product" does not include drugs, devices or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.” (emphasis added).
Maine's Attorney General's Office and the Office of Cannabis Policy ("OCP") identifies all vape cartridge as a “tobacco product.” As indicated in the highlighted portion of the definition above, the State relies upon the phrase “whether or not they contain nicotine” when it asserts that a person under the age of twenty-one (21) is prohibited from purchasing vape cartridges. The State has asserted that the tobacco product definition above makes clear that what is inside a vape cartridges is irrelevant. Therefore, all vape cartridges are a tobacco product by definition, and any sale to a consumer is governed by the Retail Tobacco Sales Statute.
The Retail Tobacco Sales Statute is separate from the Tobacco Products Tax Statue. The Tobacco Products Tax Statute is specific to registering as a “tobacco distributor” with the Maine Revenue Service. The Tobacco Products Tax Statute has a different definition for a “tobacco product,” which includes exceptions for specific Adult Use cannabis and Medical cannabis. To learn more about the Tobacco Products Tax Statute, click here.
The OCP is not responsible for enforcing either tobacco statute. Instead, Maine’s Attorney General’s Office assists other state agencies on enforcing the referenced tobacco statutes. If you have questions about whether you need to obtain a Tobacco Retail License or register as a Tobacco Distributor, please contact your attorney with any questions about the Tobacco Retail Sales Statute or the Tobacco Product Tax Statute.
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John M. Burke manages the firm's Maine cannabis law practice. Mr. Burke advises and represents the firm's clients throughout Maine in both the Medical and Adult Use cannabis programs in a wide range of Maine cannabis law matters. In addition to Mr. Burke's Maine cannabis law practice, Mr. Burke advises and assists the firm's clients in a variety of industries on various intellectual property matters throughout the United States. Learn more about John Burke by Clicking Here.
Caseiro Burke is a boutique law firm that specializes in intellectual property law and cannabis compliance and licensing in the State of Maine. We offer clients creative, cost-effective and reliable legal solutions in all intellectual property and Maine cannabis law matters.