Kentucky Advances its March Toward Medical Marijuana

Kentucky residents are one step closer to being able to purchase medical marijuana products. Implementation of the state’s medical cannabis program has begun with an eye on sales beginning in 2025.

In March 2023, Kentucky Governor Andy Beshar signed Senate Bill 47 into law, becoming the 39^th state to establish a medical or recreational program in the United States. Months earlier, Beshar issued Executive Order 2022-798, granting a conditional pardon if certain conditions are met to Commonwealth citizens who use cannabis for medical purposes and are accused of violating possession laws.

Taking effect on January 1, 2025, SB 47 lays out parameters of the program, including qualifying conditions, allowable potency of marijuana products, and how physicians or advanced practice registered nurses become certified as medical cannabis practitioners.

The Cabinet for Health and Family Services (CHFS) is responsible for implementation, oversight, and regulation of the Kentucky medical cannabis program. Issued in January 2024, its proposed regulations are comprehensive and include operational requirements for medical cannabis cultivators, processors, producers, and dispensaries as well as advertising, packaging and labeling, transport and delivery, and testing entities. CHFS is accepting written comments on the proposed regulations until March 31.

CHFS’s initial regulations did not include licensing requirements, leaving unclear exactly how many licenses for cultivators, processors, producers, and dispensaries will be awarded and how the application process will be conducted. More clarity on licensure, process and procedure for certification as medical cannabis practitioners, and additional regulations should come in the near future as SB 47 requires CHFS to promulgate regulations by July 1.

Relatedly, several Commonwealth legislators introduced House Bill 351 this past January, which stipulates that employers must prove that cannabis was the cause of an employee injury in workers’ compensation matters. More specifically, if a test reveals five nanograms or more of delta-9 THC per millimeter and no unprescribed medicine or no excess prescribed medicine, the employer has the burden of proving the injury was “proximately caused” by cannabis. If a test reveals less than five nanograms of delta-9 THC per millimeter and no unprescribed medicine or no excess prescribed medicine, there is an irrebuttable presumption that cannabis did not cause the injury.

Further, Kentucky lawmakers are considering House Bill 829, which was introduced last month, and would make several revisions to the medical cannabis program. Among other changes, HB 829:

• empowers CHFS to inspect and investigate licensed cannabis businesses;
• grants local governments authority to impose on cannabis businesses a reasonable fee for additional government costs caused by the operation;
• requires CHFS to prioritize Kentucky hemp businesses when reviewing and considering applications; and
• requires dispensaries to provide patients with a Medical Cannabis Advisory Pamphlet if the patient is purchasing from the dispensary for the first time, if the patient has not purchased from the dispensary in more than 12 months, and if the content of the Pamphlet has materially changed. The Pamphlet, to be produced by CHFS, would include information about risks and side effects of medical cannabis and would have a detachable signature page, which the patient must sign, and the dispensary must retain for 36 months.

Finally, the Kentucky Medical Cannabis Program has recommended to the General Assembly to expand the list of qualifying conditions to include 15 additional diseases and conditions such as ALS, Chrohn’s, and Huntington’s Disease. Doing so would include more than 400,000 Kentuckians who could be eligible for medical cannabis.

We expect more developments soon and will continue to provide updates as the Kentucky medical cannabis program unfolds throughout the year. In the meantime, cannabis and ancillary businesses should proactively review the law and corresponding proposed regulations and work with experienced counsel to assess and ensure that their operational procedures comply with medical program requirements.