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Marijuana “Kind of” Legal in Kentucky


On November 15, 2022, Governor Andy Beshear announced two executive orders related to cannabis in Kentucky. The first executive order allows certain individual Kentuckians and their caregivers to bring and use medical marijuana into the state without facing legal consequences beginning January 1, 2023, so long as they meet a set of three criteria. The second executive order involves the regulation of Delta 8 THC, a psychoactive substance found in the cannabis sativa plant, though different from Delta 9 THC, the main psychoactive compound found in marijuana and the source of its well-known euphoric effects. Delta 8 THC is not considered a controlled substance, whereas Delta 9 THC is controlled.

The medical marijuana executive order was done under the constitutional pardon power of the Governor in Section 77 of the Kentucky Constitution.[i] The executive order provides preemptive pardons to individuals that bring marijuana into the state if they meet the criteria below. This comes on the heels of President Biden announcing an executive order to pardon all federal marijuana possession charges.[ii]

The criteria to bring and use medical marijuana into the state is as follows:

  • The cannabis must be lawfully purchased in the U.S. from a state where the purchase is legal, and the receipt must be kept;

  • The amount purchased and used must not exceed eight (8) ounces, which is the difference between a misdemeanor and a felony in Kentucky; and

  • Each person must have a certification from a licensed health care provider showing the person has been diagnosed with at least one of twenty-one (21) medical conditions.[iii] 

This new executive order also has an impact on states that border Kentucky. While Kentuckians will be allowed to bring and use medical marijuana in the state if they meet the criteria above, some states do not allow the sale to out-of-state residents. Kentuckians and bordering state dispensaries will have to make sure that they are following the appropriate state laws.

Not all Kentucky politicians welcomed Governor Beshear’s announcement, as the Attorney General of Kentucky stated on Twitter, “Time and time again, the governor has attempted to bypass the policy-making authority of the General Assembly. Today’s executive orders regarding medical marijuana and Delta 8 are another example of his attitude toward governing. 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.” Hence, it seems likely there will be challenges to these recently announced executive orders, and Dinsmore will keep you updated with ongoing developments.

The links for the full executive orders for medical marijuana[iv] and Delta 8 THC[v] are below.


FOOTNOTES

[i]https://apps.legislature.ky.gov/Law/Constitution/Constitution/ViewConstitution?rsn=85#:~:text=He%20shall%20have%20power%20to,be%20open%20to%20public%20inspection.

[ii] https://www.dinsmore.com/health-care-industry/publications/up-in-smoke-president-biden-announces-pardons-and-orders-review-of-cannabis-classification/.

[iii] Cancer, amyotrophic lateral sclerosis (ALS) or Lou Gehrig’s disease, epilepsy, intractable seizures, Parkinson’s disease, Crohn’s disease, multiple sclerosis, sickle cell anemia, severe and chronic pain, post-traumatic stress disorder, cachexia or wasting syndrome, neuropathies, severe arthritis, hepatitis C, fibromyalgia, intractable pain, muscular dystrophy, Huntington’s disease, human immunodeficiency virus (HIV) or acquired immune deficiency syndrome (AIDS), glaucoma and a terminal illness.

[iv] https://governor.ky.gov/attachments/20221115_Executive-Order_2022-798_Medical-Cannabis.pdf.

[v] https://governor.ky.gov/attachments/20221115_Executive-Order_2022-790_Delta-8.pdf.


© 2022 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume XII, Number 326
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About this Author

Daniel S. Zinsmaster, Dinsmore Law Firm, Health Care Lawyer
Partner

Dan provides trusted counsel and advocacy to health care clients on a variety of matters, such as corporate compliance, provider credentialing, administrative proceedings and litigation.  He also advises clients on practice formation and acquisition, as well as contract review and preparation.  In recent years, Dan has helped health care companies and providers navigate through fraud and abuse investigations, antitrust reviews, and other white collar criminal matters.  He is a frequent author and lecturer on telehealth and telemedicine issues.

...

(614) 628-6949
Bryan L. Cockroft Health Law Attorney Dinsmore Shohl
Associate

Bryan focuses his practice on health care law. His experience includes a one-year fellowship at TriHealth, Inc. in Cincinnati Ohio where he assisted with the drafting of TriHealth’s COVID-19 vaccination policy; working with in-house and outside counsel on physician contracting, clinical trial agreements, and vendor contracting; and conducting legal research on compliance, hospital credentialing, and telemedicine. He received his J.D. from University of Cincinnati College of Law where he participated in the Entrepreneurship and Community Development Clinic.

502-540-2576
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