“Who are we protecting? … Public health, public safety? Or … licensees by keeping them anonymized?”
The Dec. 11 public meeting of the Massachusetts Cannabis Control Commission packed a wallop, clocking in at nearly seven hours of airtime for the four current commissioners. The biggest headlines to emerge from the marathon event covered the approval of long-awaited regulations for establishments where cannabis may be consumed socially.
That unanimous vote came early on, but for those who stuck around, much spicier news came much later.
Since her triumphant return to the chair, Commissioner Shannon O’Brien has sparred several times with General Counsel Kajal Chattopadhyay over a mandatory industry report it filed with the legislature earlier this year, as well as other issues related to transparency. Reliably assisted by Commissioner Kimberly Roy, O’Brien brought her scrutiny to new heights last Thursday.
An improved open data product catalog
The discussion among CCC members turned testy during an agenda item labeled “New Metrc Product Catalog with COAs,” and snowballed into the next item, “Updates to the Testing Data on the Commission’s Open Data Website.”
The new product catalog from Metrc is a website where consumers can search for a desired brand, product, or strain to learn which dispensaries have it in stock. In addition to the basic information people are used to finding on dispensary websites, the certificate of analysis (COA) for each product will be available to consumers through this portal. The catalog for Nevada was used in a demonstration during the meeting, with the one for Mass proposed to go live in March 2026.
Commissioner Roy spearheaded the updates to the open data website. The CCC currently publishes spreadsheet files of aggregated results from Total Yeast and Mold (TYM) tests and THC/THCA analyses with a “six-month lookback,” meaning the agency omits the most recent six months of results. The change sought by Commissioner Roy is to share an expanded number of results in quarterly updates with a 30-day lookback, which would make the data more up-to-date with products currently available on the market.
A contentious ‘opt-out or waiver’
The demonstration of the new product catalog went smoothly until CCC Executive Director Travis Ahern raised the desire that “some type of waiver or opt-out” be offered to Independent Testing Labs (ITLs). His motivation was unclear, and he did not have language prepared last week, but offered to bring details to the next meeting on Jan. 15.
In the meantime, Commissioner Roy firmly opposed: “I disagree with the need for a waiver and opt-out for the product catalog.” She asked, “Does Connecticut have a waiver or opt-out for their product registry?” (It does not.)
Chair O’Brien offered: “We already have a precedent where we have published significant information relative to products.” She then called on Roy to share a CCC document from 2020 which listed names of products, lab names, and results from testing vaping products that were quarantined during an electronic vape scare.
The chair continued: “We are a public agency, and we have public data.” In his turn, Commissioner Bruce Stebbins noted that, in the example from Nevada, the COA prominently displays the lab’s name and logo.
Referring to the vote from earlier that day, Commissioner Roy said, “We’ve just ratified social consumption regulations. That will have the COA through a Quick Recovery (QR) code on the product as well, so … we just voted for that, without waivers or opt-outs …”
The just-approved regulations include: “a Social Consumption Establishment shall ensure that all Marijuana and Marijuana Products sold or served on-site are accompanied by an Automatic Identification Technology … that includes … Access to the Certificate of Analysis…”
ED Ahern confirmed later in the discussion that QR codes linked to COAs would become required on packages in March of 2026.
‘Confidential records that can be deciphered’
With the aforementioned precedents established, O’Brien pushed Ahern further: “What is the rationale for an opt-out? What is the public policy, open government reason why we should allow anyone to opt out?”
Citing the general counsel, Ahern responded that his reason relates to how “an exemption of what is considered public records access is confidential records that can be deciphered through the aggregate data.”
O’Brien argued that the information they’re talking about doesn’t rise to the level of sensitive “confidential records,” which she characterized as things such as social security numbers or health information. Furthermore, the chair said, “We right now know that we have a problem holding Independent Testing Labs accountable.”
The executive director then noted that the data the CCC publishes can already be deciphered to connect ITLs with their clients: “On the large, aggregate data, within our existing anonymized data sets that say ‘Lab A’ instead of identifying a lab, somebody could then go in, use that, go through the batch number, identify the lab.”
Ahern further explained that he didn’t expect any ITLs to opt out of having their names published in the data, so his waiver would only serve to indemnify the agency against liability. O’Brien responded firmly, “I don’t think we should allow them (ITLs) to dictate to us.”
After reading a description of “confidential records” and concluding that the names of ITLs didn’t fit the category, Commissioner Roy asked, “Who are we protecting here? Are we protecting public health, public safety? Or are we protecting licensees by keeping them anonymized?”
O’Brien concurred, “Anybody who is lab A, B, C, they know who they are, and their competitors know who they are.” She later added: “I think that we go towards transparency first, and then if someone has a problem with it, let them push back.”
Competing liabilities
ED Ahern summoned GC Chattopadhyay to the meeting in response to Commissioner Roy asking, “Is that the doomsday scenario here, is that a lab will take us to Superior Court?” In front of the commissioners, the general counsel confirmed that his concern was “the possibility of being sued.”
O’Brien responded indignantly: “… We do have exposure, by not properly regulating Independent Testing Labs. … and I believe we have exposed ourselves to liability, because we have not been fulsome in terms of getting data outside.”
Chattopadhyay clarified his position: “We have an obligation as a public agency to safeguard confidential, proprietary information that has been shared with us.” After some crosstalk, O’Brien shot back, “What proprietary information do we possess that you’re trying to protect?”
“It could be a whole bunch of different things,” the GC responded, “but it could include lab names, it could include customer lists, there is a whole wide range.” O’Brien interrupted: “But we’re not publishing customer lists!” Before a speechless Chattopadhyay, she continued, “Lab names are not confidential, they are publicly available information.”
The GC countered: “Why would the Commission not want to take this step to protect itself from potential liability in a situation like this?” Following some more back-and-forth, O’Brien summed up her position: “I am more worried about the liability that the commission could be subject to for failing to be as transparent as possible.”
Joining the discussion, Commissioner Roy referred to recent national reporting by CBS News and the Wall Street Journal that found contaminated products on Mass shelves and inflated claims of THC concentration.
“This is consumer fraud,” Roy said. “It’s consumer fraud … if the THC is being sold at a higher price. So you have that going on. And, you have a public health issue if there’s moldy products on the shelf. … So that is heightened exposure, I would argue.”
“Do we have exposure to a potential class action lawsuit from consumers who feel that we are not doing the right job protecting them, their public health, protecting them from consumer fraud?” O’Brien asked the agency’s top attorney. “Do we have exposure there for a class action lawsuit?”
Chattopadhyay declined to comment.
Commissioner Stebbins helped bring the discussion to a close with a distinction between the agenda items. Asking to consider the aggregated data until the January meeting, he asserted that the COA for a product is intended to face the public by design. Stebbins placed himself in the role of the producer: “I’ve had the product tested. I’m happy with the results. I’m now putting it out on the market and it’s going into the product catalog.”
Commissioner Roy seized the opportunity to bring the product catalog item to a vote, after giving notice of her dissatisfaction with the preceding discussion. “I just want to say to the executive director after that, respectfully, I think that was unacceptable because you shared with us exposure on one side of the coin, and you refused to answer about exposure on the other side of the coin.”
