Kentucky: Grass for the Bluegrass State

BY SCOTT RECKER

After a long and unconventional path, Kentucky is set to establish a medical marijuana program, although it’s likely to be one of the most restrictive in the country and it won’t begin until 2025.

After several years of failed attempts to pass similar legislation, a bipartisan medical marijuana bill cleared the Commonwealth’s Republican-controlled General Assembly on March 30, the final day of the 2023 session, and was signed by Gov. Andy Beshear the next day.

The program will be operated by the state’s Cabinet for Health and Family Services and offers eligibility to patients with one of at least six conditions, including cancer, chronic pain, multiple sclerosis, chronic nausea and posttraumatic stress disorder. Under the bill, patients will not be allowed to smoke marijuana, but will be able to vape and ingest it.

The bill is separate from Gov. Beshear’s November executive order, which automatically pardons Kentuckians with 21 medical conditions who obtain up to eight ounces of marijuana out of state and bring it back to the Commonwealth — provided they have documentation of their medical condition and keep a receipt for the marijuana.

That executive order went into effect on Jan. 1 — and will likely be all that medical marijuana users have to lean on until the state program is established in two years. Even so, some critics have challenged the governor’s action as flawed and convoluted. Beshear himself called the order “imperfect.”

In short, there’s a lot to unpack.

When Gov. Beshear’s executive order took effect on January 1, 2023, it theoretically opened the door for people with among 21 qualifying medical conditions — or their caregivers — to possess and use small amounts of marijuana in Kentucky. The order doesn’t allow dispensaries in the state, but instead says that qualifying people who bring back and use legally obtained marijuana would automatically receive a pardon if needed. The caveats are that the patient or caregiver can possess no more than 8 ounces, they must keep their receipts and they must have documentation from a licensed healthcare professional of the qualifying medical condition. The governor’s office also said it provided “palm cards” to state law enforcement agencies to advise them on the rules of the order.

Because most states with medical marijuana require out-of-state users to be cardholders from a reciprocal program, Kentuckians currently have the best chance of obtaining legal marijuana from the two bordering states with recreational dispensaries: Illinois and Missouri.

The qualifying medical conditions under the executive order are cancer, ALS/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/ wasting syndrome, neuropathies, severe arthritis, hepatitis C, fibromyalgia, intractable pain, Huntington’s disease, HIV or AIDS, glaucoma and terminal illness.

When I co-reported a story last December about the executive order for CityBeat’s sister paper in Louisville, LEO Weekly, advocates and supporters were cautiously optimistic that the governor’s action would be an incremental improvement, but several sources pointed out confusing and problematic aspects.

For instance, two members of the General Assembly who have each consistently sponsored marijuana-related legislation — one Republican, one Democrat — both expressed qualms with Beshear’s action.

State Rep. Nima Kulkarni, a Louisville Democrat who supports decriminalization of marijuana, called the executive order a “modest step forward” but said she has concerns about how the pardons would work and how compliance with the order would be enforced.

“On a practical level, how is somebody supposed to navigate this?” she told LEO State Rep. Jason Nemes — a Republican who has been a longtime advocate for medical marijuana in the General Assembly — told LEO, “The governor knows it’s not legal, but he’s doing it anyway for politics.” In that same conversation late last year, Nemes told LEO that despite his feelings about the executive order, he was open to working with Beshear leading up to the 2023 General

Assembly because passing a medical marijuana bill was “all hands on deck.”

In March, on the day that the medical marijuana bill was signed into law, Beshear and Nemes were at the press conference together, all smiles and compliments.

Prior to the medical marijuana bill passing in March, Kentucky’s previous two legislative sessions saw a similar bill make it through the statehouse, only to be stalled and never voted on in the Senate.

In those previous sessions, both bills were sponsored by Nemes, who has spent years trying to persuade his fellow Republicans that Kentuckians suffering from serious medical conditions need medical marijuana access.

In the 2023 session, Nemes didn’t file a bill in the House, saying it needed to clear the Senate first.

That tactic proved successful. The legislation that passed, Senate Bill 47, allows “registered qualified patients” and designated caregivers to purchase up to what the Cabinet for Health and Family Services determines is an “uninterrupted” 30-day supply during a “given” 25-day period. A “visiting qualified patient” can purchase up to a 10-day supply during a “given” 8-day period.

Even qualified patients, though, may not smoke marijuana in public; they could be charged with a crime and lose their cardholding status. A board created by the cabinet will also be able to recommend other conditions to be included in eligibility.

Right before he signed the bill into law, Beshear reflected on the day he announced the executive order and how it fit into his ultimate goal.

“That day and the many days that followed, I talked about that executive order being imperfect, and that we needed legislative action, and last night the General Assembly delivered,” Beshear said at the press conference.

Nemes also spoke during the press conference, offering his perspective on what the medical program will mean for Kentucky.