The Kentucky House of Representatives on Thursday passed a bill to legalize medical marijuana in the state. The legislation now heads to the Senate.
The measure, sponsored by Rep. Jason Nemes (R), was taken up by the full chamber about a week after clearing the House Judiciary Committee. Meanwhile, separate adult-use and medical legalization bills were filed by Democratic lawmakers last month.
The vote on the floor was 59-34.
“This is Kentucky grown, Kentucky processed, Kentucky tested,” Nemes said ahead of the vote. “Grown by Kentucky farmers on Kentucky land with Kentucky seeds for our Kentucky brothers and sisters and the Kentucky patients from across the Commonwealth.”
Nemes filed a medical legalization bill in 2020 that soundly passed the House but later died in the Senate without a vote amid the early part of the coronavirus pandemic. He reintroduced the legislation for the 2021 session, but it did not advance.
In the months since, the lawmaker has worked to build support—and recently earned the endorsement of Senate Judiciary Chairman Whitney Westerfield (R), for example, who said he will back the House bill despite personal reservations about marijuana reform because he’s heard from constituents who stand to benefit from the treatment option.
Nemes has continually expressed confidence that the reform legislation would advance through the legislature if only leadership had the “courage” to put it to a vote.
Prior to Thursday’s vote, Rep. Al Gentry (D) delivered an emotional speech telling the stories of several people he personally knows who have benefitted from medical cannabis.
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HB 136 would establish a relatively restrictive program, prohibiting both the home cultivation of marijuana and the smoking of cannabis flower. Whole-plant products would be allowed under the bill, but patients would be required to vaporize them.
Qualifying conditions will include cancer, epilepsy and seizure disorders, multiple sclerosis, PTSD, chronic nausea and cyclical vomiting and chronic, severe, intractable or debilitating pain.
Last week, the Judiciary Committee adopted a substitute version prior to advancing the legislation and sending it to the floor. Among other changes, it would allow physician assistants to apply for certifications to recommend cannabis, give licensing boards permission to “intervene” if a doctor is impaired by cannabis and revise language related to fees for authorization to recommend medical marijuana and provide “medicinal cannabis consultation services to cardholders.”
On the floor, members of the full body approved a handful of amendments to the bill.
Nemes, the measure’s sponsor, proposed an amendment to alter provisions on immunity for Kentucky Board of Pharmacy and pharmacists, replace “nausea and vomiting” with “chronic nausea and cyclical vomiting” on the list of qualifying conditions and remove language stipulating that regulators would need to allow patients to access medical marijuana for a certain list of conditions “at a minimum.” A colleague had expressed concern in committee that such language would signal that regulators could approve additional conditions down the line, which he wanted to prevent.
The bill sponsor also filed a proposed revision to clarify that the legislature would need to sign off on the addition of any new qualifying conditions in the future.
Rep. Rachel Roberts (D) filed an amendment to add post-traumatic stress disorder to the list of qualifying conditions.
“Of the 37 states who have some form of legalized cannabis, all of them expressly list PTSD as a permissible diagnosis, have full adult-use legalization or include wording in their medical programs to allow doctors some flexibility in prescribing,” she said. “Kentucky would be the outlier if not include this diagnosis.”
Also on Thursday, the House approved a separate bill to create a Kentucky Center for Cannabis Research to fund studies into “the effects of cannabis, the efficacy and potential health effects of various cannabis delivery models” and more, the sponsor, Rep. Kimberly Moser (R), said on the floor. The vote was 93-0.
Under Nemes’s broader medical cannabis legislation, regulators would set many of the program’s specific rules—for example personal possession limits—during an implementation period later this year if the bill passes.
The program would launch in early 2023 if the legislation is ultimately enacted.
The bill’s relatively narrow approach is designed to win support among GOP leaders in the state Senate, who’ve killed past versions of Nemes’s proposal. Senate Floor Leader Damon Thayer (R), for example, steadfastly opposes the change, having warned that it’s a fast track to full legalization.
“I know my constituents are for it,” Thayer, who owns a whiskey distillery, said during a televised panel in January. “But this is a republic, and 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.”
The Nemes bill includes provisions such as a ban on discrimination against cannabis patients in areas such as child custody matters and organ transplants. Students who use medical marijuana would be permitted to consume it on campus under the administration of a school nurse.
Patients would be able to have a 10-day supply of marijuana products outside the home and up to a 30-day supply secured at their residence. Those amounts are still poorly defined, however, as the bill leaves it to regulators to determine what constitutes a day’s worth of cannabis.
Products would be subject to a 12 percent excise tax and taxes on gross receipts, with revenues split between state and local governments. Of all state revenue, 13.75 percent would go to local law enforcement to help enforce the new law.
Business licensing would be fairly flexible, with no caps on license numbers or rules about vertical integration, as some other states have implemented.
While Gov. Andy Beshear (D) has said that his focus will be on getting medical cannabis enacted this year, he said he also supports legislation introduced by Rep. Nima Kulkarni (D) in November that would prevent people from being incarcerated over marijuana for any use, saying he’s in favor of that policy.
Kulkarni’s bill would legalize the possession and personal cultivation of cannabis, but it doesn’t provide a regulatory framework for commercial sales.
Democratic leaders from both chambers, meanwhile, said in January that legalizing medical marijuana will be a top legislative priority for this year’s session. And in the spirit, Senate Minority Floor Leader Morgan McGarvey (D) and two other colleagues filed their own legalization measure last month.
The companion legislation—SB 186 and HB 521—is dubbed LETT’s Grow, an acronym built of the bills’ main components: Legalizing sales, expunging crimes, treatment through medical use and taxing of adult-use sales.
It would also expand funding for treatment of substance use disorder and earmark a portion of state proceeds for scholarship programs and grants to groups that have been disproportionately impacted by the drug war.
If passed, the Democratic-led bill would legalize possession of up to a one ounce of marijuana in public and up to 12 ounces in a private space. Sharing of up to an ounce of cannabis between adults or patients would also be legal. People legally allowed to possess and use cannabis could also grow their own at home, with up to 10 mature marijuana plants per person.
Medical use would be allowed for any medical condition “for which an authorized practitioner believes that a cardholder patient may receive therapeutic or palliative benefit from the use of medical cannabis.”
Sales of adult-use cannabis would be taxed at six percent at the state level, with municipalities able to add fees of up to five percent combined between local jurisdictions. Overall, sales would be taxed at no more than 11 percent, which is lower than most other legal states.
All products would need to carry an advisory label and include basic details including ingredients and additives, net weight, an expiration or use-by date and “labeling that differentiates between medical cannabis products and adult use cannabis products.” Further, all packaging would need to be opaque.
The bill would also forbid employers or professional organizations from discriminating against people who use cannabis off the job provided it does not affect their work performance or compromise safety. Smoking marijuana in public would remain illegal but be punishable by a maximum $100 fine.
Anyone ever convicted of a misdemeanor for possession, delivery or manufacture of cannabis or cannabis-related paraphernalia could petition a court for expungement. The process would happen automatically after a year, although people could petition a court for expungement earlier.
The governor also supports legalization, saying late last year that it’s “time we joined so many other states in doing the right thing.” He added that Kentucky farmers would be well positioned to grow and sell cannabis to other states.
A poll released in 2020 found that nine out of 10 Kentucky residents support legalizing medical marijuana, and almost 60 percent say cannabis should be legal under “any circumstances.”
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Photo courtesy of Mike Latimer.