Kentucky Executive Orders Authorize Possession of Medical Cannabis and Add Regulations for the Sale of Delta-8 THC Products

February 8, 2023

By

Timothy R. Wiseman
Member, Stoll Keenon Ogden PLLC
859.231.3073
tim.wiseman@skofirm.com

As of January 1, 2023, Kentuckians may lawfully possess up to eight ounces of medical cannabis—purchased in states where the sale is legal—if they have been diagnosed with one of 21 specified medical conditions. Kentucky joins the majority of the country in allowing for some use medical use of cannabis, but this policy change came via executive order, not legislative action. Via another executive order, Kentucky also has authorized and begun regulating the sales of hemp-derived products containing a psychoactive ingredient similar to that found in marijuana. These executive actions leave Kentucky healthcare providers, employers, and producers and sellers of hemp-derived products to navigate a new—and changing—landscape with only limited guidance.

Gov. Andy Beshear’s executive order as to medical cannabis followed the collection of public feedback by the Kentucky Medical Cannabis Advisory Committee appointed by the governor. The executive order adds Kentucky to the list of 37 other states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands where medical cannabis may be used.

Pursuant to the executive order, Kentuckians will not be required to obtain a specific prescription for the use of cannabis or a state-issued registration card. This is a departure from the regulatory schemes in place in other parts of the country. Under those other states’ systems, such as in neighboring Ohio, a patient with an approved and documented qualifying condition is issued an identification card after a physician has advised the patient about the medical use of cannabis. In Ohio and other states, this identification card is provided only after an application has been submitted by a physician and approved by the state.

Instead, to comply, Kentuckians must be able to provide proof of purchase from a state where cannabis is legally sold along with a “written certification” of their qualifying medical condition. The “written certification” does not require a recommendation or prescription for cannabis use, but must contain:

  • The patient’s name, date of birth, home address and telephone number;
  • The “healthcare provider’s” name, address, telephone number, and professional license number;
  • A statement that the “healthcare provider” has a bona fide provider-patient relationship with the patient; and
  • A statement by the “healthcare provider” that in his or her professional opinion the patient suffers from a medical condition listed in the order.

The 21 qualifying medical conditions listed in the executive order include “cancer,” “post-traumatic stress disorder,” “neuropathies,” “severe arthritis,” and “severe and chronic pain.” Both doctors of medicine and osteopathy licensed in Kentucky (or the state where they reside) qualify as healthcare providers able to provide these certifications of the qualifying medical conditions. The medical conditions are not further defined or described beyond the labels provided in the executive order.

The order also does not provide any guidance to employers, i.e. whether they must accommodate or permit an employee’s use of medical cannabis. Other states have taken differing approaches. Some, like Ohio, have preserved an employer’s right to a zero-tolerance drug policy. Others, like Oklahoma, have limited an employer’s right to discipline or discharge holders of medical marijuana licenses.

The executive order does not impact the recreational use of cannabis, which remains illegal in Kentucky. However, in 2022 a Kentucky state court ruled that products containing a form of Tetrahydrocannabinol (“THC”) are legally compliant hemp under Kentucky state law. THC is a compound produced by cannabis plants. While hemp and marijuana are both cannabis plants, Congress has defined hemp as plants containing no more than 0.3 percent THC. Thus, the federal distinction between hemp and marijuana is the level of THC, specifically, Delta-9 THC. Hemp plants, however, do produce a similar compound known as Delta-8 THC, which was not specifically addressed by Congress.

According to the U.S. Food and Drug Administration (“FDA”), Delta-8 can produce similar effects to Delta-9 THC, “the component responsible for the ‘high’ people may experience from using cannabis.” Based on this similarity to Delta-9 THC, the Kentucky Department of Agriculture had targeted Delta-8 as Schedule I controlled substance. Those enforcement actions brought the case before a Kentucky state court, which held that Delta-8 THC was permitted. Citing the Kentucky state court ruling, Gov. Beshear entered an executive order requiring Delta-8 sales be subject to the same packaging and labeling requirements applicable to cannabidiol (“CBD”) product sales. These regulations require product labels to provide customers with certain information, including manufacturer, and that the product is within the federal limits. However, the FDA continues to make clear that “the products have not been evaluated or approved by the FDA for safe use in any context,” so sellers and consumers are left with limited, if any, guidance.

While Kentucky has shifted its policy on cannabis, neither Indiana nor Tennessee have authorized the use of cannabis for any purpose. In early 2023, Indiana lawmakers introduced a bill to legalize all cannabis use for adults and for those with qualifying medical conditions.  The landscape, however, in the region remains uncertain when it comes to cannabis, especially for Kentucky healthcare providers and employer confronting new policies in 2023.

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