On November 15, 2022, Kentucky Governor Andy Beshear issued an executive order intended to decriminalizes medical cannabis. This is one of the most interesting  executive orders we’ve seen in a bit – and that’s saying something after the last six years in this country. Let’s take a look at exactly what it does.

It’s worth noting that Kentucky has been an extremely pro-hemp state since the 2014 Farm Bill. But, the state hasn’t had success with medical or recreational cannabis. Like almost anywhere else though, opinions are changing quickly. According to the state’s own internal comment data, more than 98% of people who commented supported medical cannabis.

That brings us to executive order 2022-978: the “Executive Action Relating to Medical Cannabis.” It starts off with the obvious yet powerful statement that “Kentuckians throughout the Commonwealth suffer from a multitude of medical conditions from which they deserve relief.”

Much of the executive order is a lengthy recital of state and federal laws, data regarding local support, and the medical benefits of cannabis. This is standard practice in an executive order or law: the government essentially sets the background for why the order or law is necessary by expounding on a problem it is intended to solve.

The “meat” of the executive order comes in at the end of page 2 beginning with “NOW, THEREFORE.” Governor Beshear issued a prospective pardon if certain conditions are met. This means that as of January 1, 2023, anyone who is charged with or convicted or possession of certain qualifying amounts of cannabis will be pardoned if they meet certain conditions. Those conditions include:

• Purchasing medical cannabis in a state in which it is lawful to do so (note, this means that people will have to transport cannabis across state lines, which is illegal federally and almost certainly illegal in Kentucky’s neighboring states);
• Having proof of purchase;
• Possessing less than 8 ounces of cannabis (or a smaller amount as may be allowed in the state of purchase); and
• Possessing a “certification” (not a prescription!) from a KY physician with specific information and that shows that the person has a qualifying medical condition. There is a long list of conditions that includes serious mental and physical diseases/disorders, including chronic pain.

This looks a lot like what you’d expect to see in a medical cannabis statute, but instead was done via executive order. I am not aware of any other state implementing cannabis laws via an executive order. It likely has a lot to do with politics: Kentucky is a very conservative state and Governor Beshear is a Democrat (although more on the moderate side). He likely knew that despite the widespread support from Kentuckians, getting a decriminalization or legalization bill through the state legislature would be a huge problem and possibly impossible.

The problem with doing this via an executive order is that (1) the next governor could come along and completely undo it and (2) it could be more ripe for challenge than a bill that went through the standard legislative channels. The order is only a day old so it remains to be seen as to what will happen. It bears repeating that the Governor’s sanction of people transporting cannabis interstate is astonishing. And it won’t pardon federal offenses or offenses in other states.

As one final note, you’ll notice I used the term “decriminalize” as opposed to “legalize.” That’s because the bill does not create any kind of regulatory regime, change criminal laws, or allow sales in Kentucky. The legal landscape is the same but persons who meet the criteria outlined in the executive order would just be pardoned for their state-level offenses – unless the executive order is undone later.

Hopefully, the state can get with the times and move on to actual medical or adult use cannabis legalization next. In the meantime, it will be interesting to watch this strange gambit play out.

Kentucky (Kind of) Decriminalizes Medical Cannabis on Harris Bricken Sliwoski LLP.