Gov. Beshear’s Medical Marijuana Order Enters Uncharted Territory

Every couple of months for the last few years, Julie Cantwell departs her Hardin County home for a five-hour drive out of state to obtain marijuana to treat her 22-year-old son’s drug-resistant epilepsy that once saw him suffer up to 200 seizures per day. By bringing the drug back to Kentucky — one of just 13 states where not even medical marijuana is legal — she was breaking the law and risking criminal charges. But marijuana was the only thing that stopped his seizures. 

“To me, the benefit is greater than the risk,” said Cantwell. “He’s broken his nose having seizures. He’s been knocked unconscious several times having seizures. It’s just a better quality of life for him. So we have to do what we have to do.”

Since her son started using marijuana in 2019, he hasn’t had a seizure, Cantwell said. With the end of seizures, he recently got his driver’s license and is going to start working in a volunteer position.

“Medical marijuana has given him a life where he previously did not have one,” said Cantwell.

According to Kentucky Governor Andy Beshear, people like Cantwell and her son will no longer have to worry about criminal charges in Kentucky come Jan. 1, 2023 thanks to a Nov. 15 executive order that automatically pardons Kentuckians with 21 medical conditions, including epilepsy, who obtain up to eight ounces of marijuana out of Kentucky and bring it back to the Commonwealth (provided they have documentation of their medical condition and keep the receipt for the marijuana).

Beshear’s executive order side-stepped a Republican-dominated legislature that has continuously blocked medical marijuana bills, quickly leading to attacks from his political opponents that he was abusing his power. To marijuana legalization advocates, the move was seen as an important first step — albeit one that has a muted impact by requiring patients to take lengthy and expensive trips out of state.

“It’s a great step forward in lieu of legislative action. You give a little peace of mind to those out there that there is at least some protections in place to those already self medicating,” said Mathew Bratcher, the executive director of the Kentucky chapter of the National Organization for the Reform of Marijuana Laws. “However, I think the expense and travel time required to purchase out of state legal cannabis is quite high and the executive order will only benefit those who can afford to make the trip.”

With just over three weeks left until the executive order goes into effect, basic details about how it will function — like what kind of documentation patients will need to qualify — remain unclear. That lack of clarity has serious ramifications, as a misunderstanding of the law or not having the correct documents while bringing medical marijuana back to Kentucky could still lead to arrest and prosecution.

State Rep. Nima Kulkarni, a Louisville Democrat, called the executive order a “modest step forward” but said she has concerns about unclear aspects such as how the pardons would work, what documentation would be necessary and how compliance with the order would be enforced.

“On a practical level, how is somebody supposed to navigate this?” she said.

And to many patients, access to legal medical marijuana remains inaccessible under the executive order; of Kentucky’s neighbors, as of the time of writing, Illinois appears to be the only one where Kentucky patients can go on Jan. 1, representing a quick hop across the border for patients in Paducah, but a full day’s drive for somebody in the hills of Eastern Kentucky.

“This is a first step in the right direction, but I’m worried it won’t have the biggest impact on those who are marginalized or need it the most,” said Shameka Parrish-Wright, the executive director of VOCAL-KY, an organization that focuses its work on trying to end the war on drugs, mass incarceration, homelessness and AIDS. 

Lingering Uncertainty 

In announcing the executive order on Nov. 15, Beshear tried to address a burning question that those who want to access medical marijuana would likely have: Where can you get it?

“So it’s state-by-state, but there are states that allow for medical marijuana that you can make purchases if you are from another state,” he said. “Again, that’s another thing that people need to look at, right? Where are you traveling? What are their rules and regulations? And we’ll put those up too.” 

He added: “You can purchase from a state that is recreational, but only — again if it’s legal there — if it’s under eight ounces and you have the certification from a doctor about your condition. So the purchase is allowed in both types of states, but you still have to meet all those same specifications.”

What Beshear failed to mention was that, out of the Commonwealth’s neighbors, it appears that Illinois is the only neighboring state that will allow Kentuckians to legally buy marijuana when the executive order goes into effect on Jan. 1.

Of Kentucky’s neighbors, two have complete prohibitions on marijuana (Tennessee and Indiana), four have medical marijuana dispensaries but no recreational dispensaries, and one, Illinois, has legal recreational weed with dispensaries up and running.

Ohio is the closest state with medical marijuana to Kentucky’s largest population centers of Louisville and Lexington. However, Ohio Board of Pharmacy Director of Policy and Communications Cameron McNamee told LEO Weekly on Dec. 2 that “it does not appear that Ohio can enter into a reciprocity agreement with Kentucky” as the Commonwealth lacks its own medical marijuana program, which is required by Ohio law for a reciprocity agreement.

“Additionally, there is still a federal prohibition on the transfer of marijuana across state lines, which adds further complexity to the announcement,” McNamee added.

Other neighboring states with only medical marijuana dispensaries cast similar doubts about the prospect of Kentuckians coming across their borders for cannabis. 

“The West Virginia Office of Medical Cannabis has not had contact with Kentucky regarding a reciprocity agreement for terminally ill patients,” said Alison Adler, Director of Communications for the West Virginia Department of Health and Human Resources, on Dec. 2.

Virginia, which shares a border with southeastern Kentucky, also looks like a no-go.

“Virginia does not currently allow the dispensing of medical cannabis products to individuals that do not reside, either permanently, or temporarily, in Virginia,” said Diane Powers, Director of Communications for the Virginia Department of Health Professions, on Dec. 2, pointing LEO to Virginia’s applicable medical cannabis law. “Please know this information has been shared with the Kentucky Board of Pharmacy.”

 In a Dec. 5 email to LEO Weekly, Missouri Department of Health and Senior Services Communications Director Lisa Cox said that Missouri had not had any talks with Kentucky yet about access to marijuana. However, she pointed out that a Nov. 8 ballot measure that legalized recreational marijuana in Missouri also had a provision whereby out-of-state patients who produce a “substantially equivalent identification card or authorization issued by another state or political subdivision of another state” shall be allowed to purchase medical marijuana in Missouri. 

 The catch is that so far, Kentucky has said nothing about issuing formal medical marijuana cards — ubiquitous in other states that have medical marijuana —  as part of the executive order. 

While Missouri legalized recreational marijuana last month, sales are not slated to begin until at least February, according to St. Louis Public Radio.

Recreational use has also been legalized in Virginia, but sales are not set to begin until at least 2024 at the earliest. 

 Out of Kentucky’s neighbors, that leaves Illinois as the one state where recreational marijuana is legal — and sold in dispensaries — when Beshear’s executive order goes into effect on New Year’s Day. The closest Illinois dispensary to Louisville is in Harrisburg, Illinois, about a three hour drive away.

In a brief Dec. 5 statement to LEO Weekly, Beshear’s Director of Communications Crystal Staley said: “We are in discussions with border states regarding reciprocity.” 

With just weeks to go until Beshear’s order takes effect, it also remains unclear how law enforcement agencies will handle the executive order, which falls short of decriminalization by serving instead as a proactive pardon for what would be misdemeanor-level marijuana charges. In announcing the executive order, Beshear said guidance to law enforcement agencies would be forthcoming; However, as of the time of writing, no guidance has been publicly referenced by the Beshear administration. 

A spokesperson for the Kentucky State Police, which is responsible for patrolling the state’s highways and in many places would be the most likely entity to stop a vehicle carrying marijuana purchased out of state, did not respond to a request for comment.

In an email to LEO on Dec. 5, Staley, the Beshear spokesperson, said: “We are working on language for the ‘palm card’ for law enforcement.”

One person concerned about potential arrests is Republican state Rep. Jason Nemes, a longtime advocate for legalizing medical marijuana, but a legislator who has been critical of Beshear’s use of an executive order to do so. Speaking to LEO Weekly, Nemes said he worried both that arrests for marijuana possession would occur in the state and that courts would overlook the pardons issued by Beshear in his executive order.

 “There’s going to be good people, really good people, who just want to be better, who just want to feel better, that just want to have their spouse, their child or someone else that they love feel better, and they’re going to rely on the governor’s executive order in good faith. They’re going to go to Illinois, and do what the governor said they can go, and they’re going to come back to Kentucky and they’re going to get prosecuted,” said Nemes. “And then I assume they’re going to say they’re pardoned, and the court is going to throw the pardon out because it’s junk. It’s not legal and he knows it. So it’s going to be good people, operating in good faith from the governor’s executive order, are going to be criminals.”

 There is also the issue of educating the public about what the law actually says, which was lost on some people amid the celebratory tone of Beshear’s announcement.

 Dee Dee Taylor, co-founder of the East Louisville store 502 Hemp, said since the executive order was issued she has received telephone calls “almost every day” from customers asking if the store sells actual marijuana.

 “Most people don’t understand it. They’re like: ‘Well, he said it was legal.’ I’m like: ‘No, he didn’t,’” said Taylor, who was also on Beshear’s Medical Cannabis Advisory Committee. “It’s tough for people that aren’t in the know.”

 Kentuckians who obtain and use marijuana but do not meet the requirements of the executive order will still be subject to criminal charges, meaning a slight misunderstanding of the law (i.e. “Weed is legal, you just have to get it out of state”) could have disastrous consequences. 

 And with 24 days remaining until the executive order goes into effect, it remains unknown how exactly Kentuckians are to meet the requirements — most notably, what kind of paperwork documenting their medical condition they will be required to have to be in compliance with the executive order.

Skymint, a dispensary in Detroit, Michigan, where recreational marijuana is legal. | Photo by Lee DeVito.

In The General Assembly 

State Rep. Nemes has been a vocal advocate for medical marijuana at the state level. And during Kentucky’s last two legislative sessions, he has managed to get an extremely restrictive medical marijuana bill through the House, before it died both times in the Senate.  

But the Republican who represents Kentucky’s 33rd district that covers parts of Jefferson, Oldham and Shelby counties was upset with Beshear’s order.

Shortly after the governor announced the plan, Nemes took to Twitter to express his disdain with it.

“As much as I support his effort to bring medical marijuana to Kentucky, this unprecedented power grab cannot stand,” he tweeted. “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.”

Speaking to LEO, Nemes said that his Twitter reaction might have come off harsher than he wanted it to, but that he stands by what he wrote. 

“That was a little more negative than I wanted it to be, but I said exactly what I believe and I still believe everything I mentioned,” Nemes said in an early December phone interview. “I want to be very supportive of the issue, because I believe very deeply about the issue. I believe we need to have medical marijuana in Kentucky because it’s the right thing to do.”

“But, as a legislator and a lawyer, I also know you have to do things the legal way, and this isn’t even close. The governor knows it’s not legal, but he’s doing it anyway for politics,” he continued.

Nemes argues that “the governor can’t just wave his hands and knock away or change or totally rewrite entire chapters of the penal code.”

During the last legislative session, Nemes sponsored House Bill 136, a restrictive, 138-page piece of legislation that would allow medical marijuana only for certain conditions, including cancer, chronic pain, epilepsy and multiple sclerosis. It also would not have allowed “the use or consumption of marijuana by smoking.” The Republicans have a supermajority in both chambers, but after the bill passed through the House 59-34, it never saw a vote in the Senate.

Although the bill ultimately failed, Nemes achieved some smaller victories.

Sen. Whitney Westerfield, a Republican from Hopkinsville, who is the chairman of the Senate Judiciary Committee, was against the medical marijuana bill Nemes filed during the 2020 session. That year, Westerfield told the Courier Journal, “I know it won’t get a hearing until I’m OK with it, and for sure I’ve still got questions right now.” 

But during the last session, Westerfield came out in support of HB136 after several conversations with Nemes. 

“I continue to have concerns about the risk of increased access to marijuana, particularly among youth and young adults for whom it remains a recreational and gateway drug,” Westerfield wrote on Twitter shortly after announcing his support. “However, I’ve heard too many stories, in my district and out, from those long suffering and their loved ones left behind, that marijuana brought comfort and relief when nothing else worked.”

Two of the most powerful members of the Kentucky Senate, the chamber’s president, Robert Stivers, and Floor Leader Damon Thayer, have both been opposed to medical marijuana. Stivers said that he wants to see more research on the effects of marijuana, and he also supported a bill that would create the Kentucky Center for Cannabis Research at the University of Kentucky. Before the last session, Thayer called medical marijuana a “slippery slope for recreational marijuana, which I’m not for.”

In early January, during a televised preview of the 2022 session on Kentucky Tonight, Thayer said that he didn’t care whether or not the people who live in his district supported medical marijuana.  

“I’ve been hearing about it for years,” he said. “I know my constituents are for it, but this is a Republican… you know, 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.”

Nemes said that he likely won’t be filing a medical marijuana during the upcoming session in the House, because “it needs to go through the Senate first.” He told LEO that he does anticipate a bill similar to HB 136 to be filed in the Senate though.

In April, about a month after the 2022 General Assembly ended, Beshear released a four-step plan he said aimed to move the state toward legalizing medical marijuana — a precursor to the executive order.

As part of the plan, he said he reached out to his general counsel, who would analyze the options that he had to take executive action on legalizing medical marijuana. It also saw the formation of the governor’s Medical Cannabis Advisory Committee, who traveled the state to get feedback from the public about medical marijuana. 

Although Nemes questions the legality of the executive order, he praised the committee and the work they have done. 

“They’ve obtained really good stories and very good data,” Nemes said. “They can be very helpful to the argument, to the effort to pass it legislatively, and pass it in a way that is correct, that is legal and that will protect people.”

Nemes said he hopes to work with the governor during the upcoming session, because he believes passing medical marijuana should be “all hands on deck.”

The Prospect Of Decriminalization  

Kulkarni, the Louisville Democrat, also filed two bills concerning marijuana during the last session. 

One, which she called a short-term solution, would vanquish criminal penalties for possessing, cultivating and selling a “personal use quantity” of marijuana. The other — a “permanent fix” — would allow Kentuckians to vote on a constitutional amendment that would let state residents older than 21 to possess, use, buy or sell up to one ounce of marijuana without criminal penalties and to own up to five marijuana plants for personal use. Neither bill was assigned to a committee in the House.

Kulkarni said the order doesn’t address the decriminalization framework that she would like to see accomplished. 

“I know that the governor is focused on medical cannabis specifically because polling is great, right — 90% of Kentuckians support it — and that’s fine, but moving forward only with a legalization framework for medical cannabis still does not address prior convictions, it does not address convictions for paraphernalia, it does not address expungement issues,” Kulkarni said. “And so all of those things are still not addressed in this current executive order.”

She also said the argument surrounding the order could stall progress on updating marijuana laws in Kentucky.

“It has already kind of been challenged on, ‘Is this something we can do?’ ‘Is this constitutional?’ And that is distracting from the conversation that we need to be having, which is: ‘How much can we do to decriminalize cannabis and therefore make sure that people can get the help that they need, even if it falls outside of these specific conditions that are listed.”

Al Cross, a political commentator and editor-publisher of Kentucky Health News, framed the executive order as a politically savvy move by Beshear.

“I think Beshear’s executive order on marijuana is one of his smarter political moves,” he told LEO via email. “It accomplishes something that is favored by a solid majority of voters and a voting issue for a vocal slice of the electorate, and forces the legislature to decide whether to do anything about it. Going against him on this would be politically unpopular, and authorizing medical marijuana by law would allow him to take credit a second time, so at this point my guess is that they will do nothing. The more interesting question is the course of [Kentucky Attorney General] Daniel Cameron, who has to decide whether to challenge it in court or just use it as another example of Beshear’s power grabbing. But with an issue as popular as this one, I expect he will also do little with it.”

Will The Order Stand? 

Attorney General Cameron — who is also running for governor against Beshear in 2023 — released a statement the day that the executive order was announced that claimed the action bypassed “the policy-making authority of the General Assembly,” and that his office was looking into “next steps.” As of the time of writing, Cameron’s office has not filed a legal challenge to the executive order.

“As always, he seems to relish ruling by decree instead of by the law,” Cameron said in the statement. “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.”

During a Nov. 17 press conference, Beshear said he was confident that there were no grounds for a lawsuit challenging his executive order.

He added: “If they want to file a lawsuit, I know how to handle those.”

In 2019, civil rights lawyer, law professor and regular LEO contributor Dan Canon brought a challenge under the state constitution to Kentucky’s possession laws on behalf of plaintiffs who had been prescribed medical marijuana in other states. Canon said Beshear’s order wades into uncharted territory, and, if challenged, could end up in the Supreme Court.

“We are really on terra incognita here,” Canon said in an email. “To my knowledge, no other state has decriminalized cannabis via executive order — mainly because they haven’t needed to, because their legislatures aren’t packed with apathetic monsters. Not only that, but this order constitutes a blanket, prospective pardon for people who are accused — not convicted — of violating a single statute. It’s not totally clear that Beshear can exercise his pardon powers in that way.”

Canon continued: “If Cameron challenges it, it will ultimately be up to the Supreme Court of Kentucky to decide whether to read a limitation into the Constitution that doesn’t exist. It would be wrong for them to do so, in my view, but that doesn’t mean they won’t do it.”

502 Hemp, a shop in Louisville. Under the governor’s order, you will not be able to buy marijuana in Kentucky. Dee Dee Taylor, co-founder of the East Louisville store 502 Hemp, said since the executive order was issued she has received telephone calls “almost every day” from customers asking if the store sells actual marijuana. | Photo by Carolyn Brown.

For Marijuana Advocates, More Work To Be Done

Advocates for marijuana legalization have largely viewed Beshear’s move as a step in the right direction, though an imperfect one that serves as a small measure of relief as efforts towards broader legalization continue. 

“I felt like the governor went above and beyond our expectations,” said Kristin Wilcox, a co-founder of Kentucky Moms for Medical Cannabis, a medical marijuana advocacy group and a member of Beshear’s Medical Cannabis Advisory Committee. “We kind of just expected that he would maybe work with another Democrat in the House or Senate to put in a bill that he agreed with, but this was truly a giant step.”

But Wilcox said her group will continue to advocate for broader legalization to make it easier for patients in Kentucky to access marijuana.

Cantwell, the mother who travels out of state to get cannabis to treat her son’s epilepsy, is also a member of Kentucky Moms for Medical Cannabis and was also on the governor’s medical marijuana advisory board. She said those trips can end up costing a few thousand dollars between the cost of the marijuana, gas and a hotel. Those costs — in addition to the time and distance involved in going out of state — will act as a barrier to those seeking medical marijuana. 

“A lot of people don’t have the luxury to travel out of the state, especially a lot of these people out here in the country,” said Cantwell. “The people that need this are the sickest people. They just can’t up and leave the state. So we still have a lot of work to do to right here in the state of Kentucky to get this legal here.”

To Bratcher, the Kentucky NORML executive director, the executive order represented the limits of what Beshear could do himself on medical marijuana.

“There’s only so much he can do. He couldn’t do a blanket de-crim[inalization], that’s a legislative issue. So I think he did what he could do, which isn’t much, it’s just enough to give a little peace of mind and put some things in place,” he said. “But more than anything, I think it sets the stage for the legislature to really step up to the plate and get this across the finish line as far as a medical cannabis program goes.”

Jim Higdon, the co-founder of Cornbread Hemp, a Kentucky company that manufactures CBD products, said it was “frustrating and disappointing” that Beshear’s executive order did not include pardons for past marijuana offenses. He pointed out that Oregon — a state with roughly the same population as Kentucky — recently pardoned 47,000 past marijuana convictions following a move by President Joe Biden to pardon federal marijuana offenses. 

“It’s frustrating that the steps taken were so modest and conservative,” said Higdon. “If this is what counts for leadership on this issue, then we have a long way to go.”

Higdon is interested in offering higher-THC cannabis products, he said his company is built around following what federal law will allow — and that even as slow as the federal marijuana legalization process has been, he anticipates it will outpace Kentucky’s progress.

Taylor, the 502 Hemp co-founder, worries that there will be a challenge to the executive order from Cameron. But if it stands, she thinks it could move the needle on broader legalization efforts.

“I think it’s going to force the legislators to bring it up for a vote,” said Taylor. “Because why would you send all that money out of state when Kentucky could be making here on it on the taxes?” •



INFO BOX

5 THINGS TO KNOW: QUALIFICATIONS FOR MEDICAL MARIJUANA AFTER JAN. 1

Under Gov. Andy Beshear’s executive order, Kentuckians with qualifying medical conditions can possess and use small amounts of medical marijuana starting on Jan. 1, 2023. However, there are some important caveats:

Patients have one of the following 21 conditions:
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.

You’ll have to go out of state to get it.
The executive order states that medical marijuana must be legally purchased in a state that is not the Commonwealth of Kentucky. That means that there aren’t going to be any dispensaries here yet and that Kentuckians will most likely have to drive to states where recreational marijuana is legal to get medical weed.

You have to keep your receipt.
When the budtender at the out-of-Kentucky dispensary asks “do you want a receipt?” Kentuckians should say “yes” and make sure they keep it to remain in compliance with the executive order.

No more than 8 oz.
If you have more than 8 ounces of marijuana, it will go back to being a crime.

Written documentation of qualifying medical condition
The patient or their caregiver will have to have written certification from a healthcare provider that shows the person has at least one of 21 qualifying medical conditions. Under the executive order, the healthcare provider who provides such certification must be a doctor, meaning a therapist likely won’t cut it.


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