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Kentucky Governor Signs Executive Orders Allowing Medical Marijuana Possession From Other States And Regulating Delta-8 THC



The governor of Kentucky signed two marijuana-related executive orders on Tuesday: one to allow patients who meet certain criteria to possess up to eight ounces of medical cannabis legally obtained from dispensaries in other states and another to regulate the sale of delta-8 THC products.

Gov. Andy Beshear (D) said at a press briefing that the first executive order will take effect starting on January 1, 2023, giving patients with serious illness protection from prosecution in Kentucky if they possess cannabis that they can prove was purchased from a licensed, out-of-state dispensary.

“Kentuckians suffering from chronic and terminal conditions are going to be able to get the treatment they need without living in fear of a misdemeanor,” Beshear said. “With 37 states already legalizing medical cannabis and 90% of Kentucky adults supporting it, I am doing what I can to provide access and relief to those who meet certain conditions and need it to better enjoy their life, without pain.”

The executive order relies on the governor’s unilateral authority to issue clemency within the state and grants a “full, complete, and conditional pardon to any and all persons” who meet certain criteria.

“Each person must also have a certification from a licensed healthcare provider that shows the individual has been diagnosed with at least one of 21 medical conditions, which include cancer, multiple sclerosis, post-traumatic stress disorder, muscular dystrophy, a terminal illness and others,” the governor said at a press conference. “You must keep a copy of your certification.”

Because the governor cannot by himself change criminal statutes or direct police not to enforce certain laws, it means that patients could still potentially face law enforcement action for possessing medical cannabis, even if purchased legally in another state. But it does mean that they will be considered pardoned for the offense.

The second executive order concerns delta-8 THC, an intoxicating cannabinoid that can be synthesized from federally legal, hemp-derived CBD. The market for delta-8 products has boomed in recent years. The Drug Enforcement Administration (DEA) has confirmed that it’s not currently federally scheduled, but there have been growing concerns about the lack of regulations.

“Right now, there are no checks on how it’s packaged and or sold,” Beshear said. “So we must establish a regulatory structure to ensure that delta-8 is sold, packaged and purchased safely in the Commonwealth.”

The executive action on patient access “will serve as a template for when the General Assembly fully legalizes medical cannabis,” the governor said, adding that it “means we can have the right regulations in place and it means we can accelerate any timeline in the future when the General Assembly does the right and necessary thing to fully legalized medical cannabis.”

Rep. Jason Nemes (R), who has been the lead sponsor of medical cannabis legislation in the state, criticized Beshear for violating the “Rule of Law,” arguing that he “has granted himself a power that exists nowhere in the United States and finds no refuge in Kentucky’s Constitution.”

“As much as I support his effort to bring medical marijuana to Kentucky, this unprecedented power grab cannot stand,” Nemes said. “Rather than sidestep the policy-making branch and violate the Constitution, I invite him to work with us to develop a legal medical marijuana program.”

Similarly, Attorney General Daniel Cameron (R) also pushed back on Beshear’s action.

“Time and time again, the governor has attempted to bypass the policy-making authority of the General Assembly,” he said. “As always, he seems to relish ruling by decree instead of by the law. Kentucky’s General Assembly is the sole and final policy-making body of this state and they must be allowed to have their say. We are reviewing these executive orders to determine next steps.”

Lt. Gov. Jacqueline Coleman (D) praised the move, however, pointing to broad public support for medical marijuana.

“From our veterans suffering from PTSD to cancer patients or those living with multiple sclerosis, medical cannabis can provide relief and an alternative to addictive opioids,” she said.

At the press conference, Beshear was joined by two key cabinet officials, an addiction expert and a military veteran who advocates for cannabis reform and spoke to his personal experience with marijuana treatment.

Last month, the governor signaled that he would be exploring options for cannabis clemency in the state after President Joe Biden issued a mass pardon for federal marijuana possession cases and called on governors to follow suit at the state level.

He also said at the the time that he directed a review of state-level cannabis cases to inform future steps and encouraged people who’ve been convicted over marijuana alone to apply for a pardon.

This signing of the executive orders comes weeks after the governor asked the state’s Administrative Office of the Courts to conduct an analysis to determine how many Kentuckians have misdemeanor marijuana charges on their records and the possible impact of pardons.

Beshear has said that he’s continuing to push for medical cannabis legalization in the state, but he also recognizes the importance of providing relief to those who’ve been criminalized over marijuana.

Beshear isn’t the only governor who’s taken steps to explore cannabis clemency actions since Biden’s pardon proclamation. And advocates have stressed the need for state-level reform given that the vast majority of marijuana cases are prosecuted in states.

Meanwhile, the governor recently released a report from a medical marijuana advisory committee that he formed in June, and he said in September that he would be taking their findings into account as he continues to consider executive actions for reform.

The committee’s report also determined that while the governor many be able to enact some reforms unilaterally, most of its recommendations to provide patients with medical cannabis access “would require legislative action”—a problem given some leading lawmakers’ opposition to moving ahead.

In April, the governor previewed plans to advance the issue of medical marijuana administratively, criticizing the Senate for failing to heed the will of voters and for “obstructing” reform by refusing to even give a hearing to a House-passed bill this year.

Beshear has made several recent comments about the possibility of taking executive action on cannabis policy though has said he would prefer for lawmakers to pass comprehensive legislation on the issue. But with a House-passed medical marijuana legalization bill dead after the end of the legislative session, he’s increasingly expressed openness to administrative action.

Nemes’s medical cannabis bill that passed the House this year did not get a required Senate reading ahead of a legislative deadline to advance this session, but there were some who had held out hope that its provisions could have been attached to separate legislation before time ran out on the session.

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That was some wishful thinking, especially in light of remarks from Senate leadership challenging or outright opposing the idea of passing medical marijuana reform this year.

Senate Floor Leader Damon Thayer (R) steadfastly opposes the broader medical cannabis policy change, having warned that it’s a fast-track to full legalization. He said in March that the House-passed medical marijuana legislation had no chance of passing this session and it’s “done for the year.”

“I know my constituents are for it,” Thayer, who owns a whiskey distillery, said during a televised panel in January. “But this is a republic, and they elect us to go to Frankfort and make decisions on their behalf—and if they don’t like it, they can take it out on me in the next election.”

Democratic leaders from both chambers, meanwhile, said in January that legalizing medical marijuana would be a top legislative priority for this year’s session. And in the spirit, Senate Minority Floor Leader Morgan McGarvey (D) and two other colleagues filed their own legalization measures in February.

The legislation was dubbed LETT’s Grow, an acronym built of the bills’ main components: Legalizing sales, expunging crimes, treatment through medical use and taxing of adult-use sales.

For his part, Nemes filed an earlier medical legalization bill in 2020 that soundly passed the House but later died in the Senate without a vote amid the early part of the coronavirus pandemic. He reintroduced the legislation for the 2021 session, but it did not advance.

Nemes has continually expressed confidence that the reform legislation would advance through the legislature if only leadership had the “courage” to put it to a vote.

While Beshear has said that his focus would be on getting medical cannabis enacted this year, he said he also supported legislation introduced by Rep. Nima Kulkarni (D) in November that would simply prevent people from being incarcerated over marijuana for any use, saying he’s in favor of that policy.

Kulkarni’s bill would legalize the possession and personal cultivation of cannabis, but it doesn’t provide a regulatory framework for commercial sales.

The governor also voiced support for broader legalization late last year, saying that it’s “time we joined so many other states in doing the right thing.” He added that Kentucky farmers would be well positioned to grow and sell cannabis to other states.

Congressional Lawmakers Hold Hearing On Marijuana Legalization In Committee

Photo courtesy of Max Pixel.

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