Kentucky Decriminalizes Medical Cannabis Possession

Individuals who satisfy specific conditions are now able to legally possess and use cannabis for medical purposes in Kentucky per an Executive Order signed by Kentucky Governor Andy Beshear on November 15, 2022. The Order prospectively pardons any person who is accused of criminal possession of marijuana under Kentucky law if the requirements set forth in the Order are met.

Lawful purchase outside of Kentucky

First, individuals must lawfully purchase medical cannabis in a U.S. jurisdiction outside of Kentucky. Medical cannabis is lawfully sold in forty-one states and U.S jurisdictions, including every state that borders Kentucky (Ohio, Illinois, Missouri, West Virginia). However, the Order did not flesh out whether Kentucky patients would be able to apply for a medical cannabis card in another jurisdiction, whether patients would have to have a Kentucky-issued medical card that cannabis retailers in other jurisdictions may honor, or whether patients may purchase recreational-use cannabis in jurisdictions that have legalized it. Only fifteen jurisdictions recognize out-of-state medical cannabis cards, not including Ohio, Illinois, Missouri, and West Virginia. Moreover, nearly all states require proof of residency to get a medical cannabis card.

Proof of purchase

Second, written proof of purchase must be produced by individuals. Written proof must contain the place of purchase, the physical location of the place of purchase, and the date of purchase. This information is usually provided in a standard receipt from a lawful cannabis seller.

Possession amount limitations

Third, individuals must only possess the legal amount allowed under the laws of the jurisdiction where the purchase was made, not to exceed eight ounces. The allowable amount of cannabis a person may legally possess varies by jurisdiction and can depend on a variety of factors. Importantly, the Order caps cannabis possession for individuals at eight ounces, but does not clarify whether that measure is for only plant material or whether the measure includes other forms of medical cannabis, either by total product weight or by the weight of THC content only.

Qualified medical conditions

Fourth, individuals must provide certification by a licensed healthcare provider that is in good standing in Kentucky, or in the jurisdiction of the individual’s residence, showing the individual to be diagnosed with at least one of twenty-one medical conditions. Cancer, epilepsy, terminal illness, and PTSD are included among the qualifying conditions. The certification must be signed by the health care provider and include certain patient and healthcare provider information, as well as statements that a healthcare provider-patient relationship exists, and the patient suffers from an identified qualifying condition.

While cannabis legalization is normally a legislative action, the Order cited two failed Kentucky legislative efforts despite recent polling suggesting that 90% of Kentuckians support medical cannabis legalization. Opponents of the Order have questioned the Governor’s legal authority to decriminalize cannabis possession, suggesting litigation may be coming. It remains to be seen if the thirteen states where medical cannabis is illegal will follow Kentucky’s unconventional path. Further, states where medical cannabis is legal may reconsider residency and reciprocity requirements in response to the order.