Is governor's medical marijuana order legal?

Medical Marijuana Shrinking Market
Posted at 5:31 PM, Nov 17, 2022

FRANKFORT, Ky. (LEX 18) — On Tuesday, criticism from some republican leaders quickly followed Governor Andy Beshear's action on medical marijuana.

Attorney General Daniel Cameron said Beshear "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," tweeted Cameron. "We are reviewing these executive orders to determine next steps."

Rep. Jason Nemes, who has sponsored legislation on medical marijuana, said the governor does not have the power to take such action on medical marijuana.

"As much as I support [Beshear's] effort to bring medical marijuana to Kentucky, this unprecedented power grab cannot stand," Nemes tweeted.

But Beshear points to the constitution.

"This executive order is based off of the constitutional pardon power of a governor," said Beshear. "It would take a constitutional amendment to alter or change that authority."

Beshear told LEX 18 News that his action is "fully legal."

"I believe — whether it’s the AG or others — when they actually look at the order, are going to see the power we’re using is embedded in the constitution," he added.

When asked about some of the republican reaction to his orders, Beshear said he was not concerned with it.

“The response that’s important to me is that of the people of Kentucky," said Beshear. "It’s all the veterans suffering from PTSD...that are saying, finally, we can get the help that we need without feeling like a criminal. It’s those suffering from cancer."

"Either you’re on the side of the people and for providing this access to medical marijuana or you’re against it," he added.

The governor's first executive order will allow certain Kentuckians to use medical marijuana that was purchased in a state where it is legal. Gov. Beshear outlined conditions that Kentuckians with at least one of 21 medical conditions must meet to access medical cannabis beginning January 1, 2023. Medical conditions include cancer, multiple sclerosis, post-traumatic stress disorder, muscular dystrophy, or a terminal illness.

Other conditions to allow the use of medical marijuana in Kentucky include:

  • Cannabis must be bought in the United States of America in a state where the purchase is legal and regulated. Kentuckians will need to keep their receipt.
  • The amount a person can purchase and possess at any one time must not exceed 8 ounces, which is the difference between a misdemeanor and a felony in Kentucky.
  • Each Kentuckian must also have a certification from a licensed healthcare provider that shows that the individual has been diagnosed with at least one of 21 medical conditions. A copy of the certification must be retained.

Gov. Beshear also signed a second executive order that would start the sale regulation of Delta 8, a substance found in the Cannabis sativa plant. Delta 8 contains THC, but at a lower level than marijuana. It is not a controlled substance in Kentucky nor under federal law, and a court has ruled that it is legal in Kentucky.

“Right now, there are no checks on how it is packaged and sold. We must establish a regulatory structure to ensure that Delta 8 is sold and purchased safely in the commonwealth,” Gov. Beshear said. “The structure can and will also serve as a template for when the General Assembly fully legalizes medical cannabis. That means we can learn in real-time, train our people and be ready to go.”