On November 15, 2022, Governor Andy Beshear announced two executive orders related to cannabis in Kentucky. The first executive order allows certain Kentucky individuals and their guardians to bring and use medical marijuana into the state without legal consequences beginning January 1, 2023, provided they meet a set of three criteria. The second executive regulation concerns the regulation of delta 8 THC, a psychoactive substance found in the cannabis sativa plant, although it is distinct from delta 9 THC, the main psychoactive compound found in marijuana and the source of its known euphoric effects is. Delta 8 THC is not considered a controlled substance, while Delta 9 THC is controlled.

The medical marijuana executive order was enacted under the governor’s constitutional pardon power under Section 77 of the Kentucky Constitution.[i] The executive order provides preventive pardons for people who bring marijuana into the state if they meet the following criteria. This follows President Biden’s announcement that he would issue an executive order pardoning all federal marijuana possession charges.[ii]

The criteria to bring and use medical marijuana in the state are as follows:

  • The cannabis must be lawfully purchased in the United States in a state where the purchase is legal and the receipt must be retained;
  • The quantity purchased and consumed must not exceed eight (8) ounces, which is the difference between a misdemeanor and a felony in Kentucky; and
  • Each individual must have a certificate from a licensed healthcare provider stating that the individual has been diagnosed with at least one of twenty-one (21) medical conditions.[iii]

This new executive order also has implications for states bordering Kentucky. While Kentuckians are allowed to bring and use medical marijuana into the state if they meet the above criteria, some states do not allow its sale to out-of-state residents. Kentuckians and adjacent state pharmacies must ensure they follow appropriate state laws.

Not all Kentucky politicians welcomed Gov. Beshear’s announcement, as the Kentucky Attorney General tweeted: “Time and again the governor has attempted to circumvent the decision-making authority of the General Assembly. Today’s medical marijuana and Delta 8 executive orders are another example of his attitude toward government. As always, he seems to enjoy ruling by decree rather than law. The Kentucky General Assembly is the state’s only and final political decision-making body, and they must have a say. We are reviewing these executive orders to determine the next steps.” It therefore seems likely that these recently announced executive orders will be called into question and Dinsmore will update you on ongoing developments.

The links for the full Executive Orders for medical marijuana[iv] and delta-8 THC[v] are below.

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