Medical marijuana advocates hope that 2023 is the year that Kentucky joins some three dozen other states in legalizing the use of cannabis to help treat certain ailments.
But they also thought that might happen in 2020 and 2022, when the Kentucky House of Representatives passed medicinal marijuana legislation on a bipartisan basis only to see those bills stall in the state Senate without ever getting a vote.
Rep. Jason Nemes (R-Louisville), who sponsored the previous House bills, wants Senate members to take the lead on the issue this year. Republican Senators Stephen West of Paris and Phillip Wheeler of Pikeville are doing just that with their Senate Bill 47, which they hope can succeed where the previous measures have failed.
“I am optimistic that this may be the year that you see some action on it in the Senate,” says Wheeler. “We have several new members, some of whom seem to be more open to the idea of medical cannabis.”
SB 47 establishes strict protocols for producing and dispensing medical marijuana products in Kentucky, and requires patients to register with the state and be certified to use medicinal cannabis by a doctor with whom they have a “bona fide practitioner-patient relationship.”
“The purpose of Senate Bill 47... is to in fact give people a safe marketplace in which to obtain these products,” says Wheeler, “one where they know [where] it’s coming from, that it’s not contaminated by some other potential substance that could be deadly.”
Unlike the previous House measures, SB 47 does not list specific medical conditions a patient must have before being eligible to legally obtain and use marijuana products.
“I believe Senate Bill 47 is actually narrow enough and tight enough to regulate the market to make sure folks get a safe product,” says Wheeler. “At the same time, it’s flexible enough to where pharmacists and doctors can actually implement the proposed regime.”
The legislation states the marijuana products cannot be smoked, but could be consumed in other forms. The medical cannabis program would be administered not by state health officials but by the Kentucky Department of Alcoholic Beverage Control, which would go by the new name of Alcoholic Beverage and Cannabis Control.
“The ABC is more set up to enforce the legislation,” says Jaime Montalvo, founder of Kentuckians for Medicinal Marijuana. “The ABC has more enforcement agents across the state, which can then go to the license holders, say the dispensary or the cultivation facility, to make sure that they’re abiding by the rules and the regulations.”
Lack of Long-Term Scientific Research Still a Hindrance
Because legal cannabis use for legitimate medicinal purposes is still relatively new, research data on prescribing if for specific conditions remains limited. To help address that, SB 47 creates a state Board of Physicians and Advisors charged with recommending patient dosages and supply amounts.
“I want to keep the prescription practices as narrow as possible for these types of substances,” says Wheeler.
But opponents of medical marijuana say that lack of research is precisely why legalizing its use is premature.
“It has medicinal properties, but to call it medicine is a little bit of a misnomer,” says Dr. Danesh Mazloomdoost, an anesthesiologist and pain management specialist in Lexington. “We don’t have the science to come with the medical scrutiny and say this is indeed effective for this kind of condition or it’s not. That creates an unintended consequence of harm in that people have a false sense of security.”
Since marijuana remains a Schedule I drug under United States Drug Enforcement Administration rules, large-scale medical research projects into cannabis are limited and require stringent federal controls. (Schedule 1 status means the substance has no currently approved medical use and has a high potential for abuse.) Without that research, Mazloomdoost says doctors have no way of knowing the effects of using marijuana or its compounds, how those compounds actually work in the body, what dosing would be safe and effective, and what complications long-term use might pose.
While advocates cite anecdotal stories about the relief marijuana provides individuals suffering from epileptic seizures, cancer patients battling nausea, or people with chronic pain or post-traumatic stress, Mazloomdoost says that’s no replacement for scientific data.
“It’s very easy to get swayed by the emotional component of stories like that,” he says.
Mazloomdoost also questions claims that medical marijuana will help decrease the incidence of opioid addiction. He says there’s no research to indicate that cannabinoids influence the physiological processes that lead to addiction, much less the social and psychological issues that can contribute to substance abuse. He admits marijuana is less potentially deadly than opioids but he says we simply don’t know whether it’s safer for long-term use for pain control.
“When opioid dependency or addiction forms, endocannabinoids don’t reverse that process,” he says. “The thought that you can replace marijuana in the opioid epidemic and you’re not going to see adverse, unintended consequences from that is misguided.”
Some law enforcement officials also want more scientific data, according to the National Marijuana Initiative’s Ed Shemelya, who represents the Kentucky Narcotics Officers Association. He says President Joe Biden signed legislation last year that would specifically expand research into marijuana compounds and their potential medicinal values. Shemelya contends it would be misguided for state lawmakers to act before that data becomes available.
“There are so many myths about this drug that need to be put to scrutiny with science,” says Shemelya. “I question whether the legislature really understands what they’re trying to enact with respect to this piece of legislation... They’re placing themselves above scientists that are doing research.”
Without more data, Montalvo says he understands why some doctors are reluctant to recommend medical cannabis use. He says some patients currently fear even asking their doctors about medicinal use because it is illegal. He also argues that people shouldn’t be prevented from having legal access to authorized medicinal products, especially when it’s already so easy to acquire recreational marijuana even in places where it's outlawed.
“It is here, so we as patients are asking for it to be regulated so that we can a safe product to consume or to test on ourselves,” says Montalvo. “It is a choice by a patient to consume cannabis.”
If patients want to use medicinal marijuana even without a doctor’s recommendation or supervision, then Mazloomdoost says why not remove medical professionals from the entire process.
“If it’s so safe and it’s so effective, then take physicians out of it and label it just as you would nicotine or alcohol and let people make the decision for themselves,” says Mazloomdoost.
Gov. Beshear’s Action on Medical Marijuana
While the legislative debate continues, Gov. Andy Beshear took his own action on the matter. In November, he issued an executive order that would pardon any person facing criminal charges for possession of marijuana if the individual has a written certification from a physician for medicinal cannabis use for one of 21 specific ailments, if the product was lawfully purchased in a state where marijuana is legal, and if the patient possesses no more than 8 ounces.
“Allowing Kentuckians diagnosed with certain medical conditions and receiving palliative care to purchase, possess, and/or use medical cannabis would improve the quality of their lives,” Beshear wrote in his order.
While the governor’s action was praised by some, it also drew criticism from both supporters and opponents of medical marijuana. Sen. Wheeler says he shares Beshear’s compassion for patients, but he argues that governors should leave policymaking to the legislative branch. He also questions how the order proactively pardons people for a crime.
“That’s a pretty slippery slope, giving a prospective pardon to behavior that you may think is OK but is technically against the law in Kentucky,” says Wheeler.
Montalvo says he fears the order will be confusing to people who think that it’s now legal for them to possess medicinal products in Kentucky. He also says unscrupulous online doctors are already lining up to provide certifications for use to patients.
“The sharks are swimming and there’s a lot of blood in the water – they’re very excited about it,” says Montalvo. “I fear that the executive order was well intentioned but will lead to many more problems.”
Besides legislative inaction, Beshear pointed to polling that indicates some 90 percent of Kentuckians approve of legalizing medical cannabis. Shemelya doubts the support is actually that strong, pointing out that some people would not tell a pollster they disapprove of helping someone who is terminally ill. He also questions why Beshear, who wants Kentuckians to follow the science on COVID-19 protocols, has now changed his tune.
“You can’t cherry-pick when you want to follow science and when you want to ignore science,” says Shemelya.
Whether through executive order or legislative action, Shemelya says the push for medical marijuana will ultimately lead to legalizing recreational marijuana. He contends there simply aren’t enough potential medicinal-use patients to support a system of growers and dispensaries, so they will soon advocate for full legalization. He also says activists have already normalized cannabis use of any kind to dangerous levels.
“We have got this to the point where our young people don’t see anything wrong with this,” says Shemelya. “Matter of fact they actually think it’s safer than alcohol.”
So far, Kentucky Attorney General Daniel Cameron has not challenged the governor’s medical marijuana order (Cameron, a Republican, is running to oppose Beshear, a Democrat, in this year’s race for governor.)
The General Assembly returns on Feb. 7, and lawmakers could take up Senate Bill 47 then. But the measure faces an uphill battle: Senate President Robert Stivers (R-Manchester) says he continues to be concerned about adverse consequences of medical marijuana use, including potential abuse of the products. Senate Majority Floor Leader Thayer says he is opposed to medical marijuana, though he adds he won’t stand in the way of passage if there are enough votes in the chamber to approve it.