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Private Needle Exchange Programs Do Not Require Local Approval: Massachusetts Supreme Judicial Court Weighs In

Last week, in a case being watched locally and nationally, the Massachusetts Supreme Judicial Court ("SJC") ruled that local government approval is not required for the operation of a private needle exchange program and that the Town of Barnstable cannot bar such a program from operating.  The ruling confirms that private needle exchange programs -- an important tool in combating the spread of HIV and hepatitis C associated with injection drug use -- can continue in Massachusetts as the Commonwealth copes with an ongoing opioid epidemic.   My Mintz Levin colleagues, Andrew DeVoogd and Tiffany Knapp, and I drafted an amici curiae brief in the case in support of the plaintiff's position on behalf of approximately thirty public health organizations, healthcare providers, and payors. 

The case, AIDS Support Group of Cape Cod, Inc. v. Town of Barnstable, arose when the town ordered AIDS Support Group of Cape Cod ("ASGCC") to cease operating its private needle exchange program.  The town argued that, despite a change to Massachusetts law in 2006 that decriminalized the possession of hypodermic needles, the only legal methods of distributing clean needs in the Commonwealth are through: (i) the sale of clean needles by pharmacists; and (ii) needle exchange programs operated by the Department of Public Health ("DPH") with local approval.  ASGCC countered that nothing in Massachusetts law prohibits a private organization from engaging in the non-sale distribution of clean needles.  After reviewing both the language of the statutes permitting pharmacists to sell hypodermic needles and establishing DPH-operated needle exchange programs, and the legislative history surrounding the statutes, the SJC unanimously found that there was no bar on the non-sale distribution of hypodermic needles by private organizations.

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