Legalization of Medical and Recreational Marijuana and Industrial Hemp

Although the use of medical or recreational marijuana is not legal in Kansas, several bills have been introduced to change the law. Medical marijuana use is legal in 36 states and the District of Columbia. Recreational use of marijuana is legal in 15 states and the District of Columbia. This article summarizes the bills that have been introduced in Kansas and provides an overview on the legalization and decriminalization that has occurred in other states.

Medical Use of Marijuana in Kansas

Enacted Legislation

In the last 16 years, 23 bills have been introduced in the Kansas Legislature addressing the topic of medical marijuana or

cannabidiol; two of these bills have been enacted. The 2019 Legislature passed SB 28, also known as “Claire and Lola’s Law,” which prohibits state agencies and political subdivisions from initiating child removal proceedings or child protection actions based solely upon the parent’s or child’s possession or use of cannabidiol treatment preparation in accordance with the affirmative defense established by the bill. Additionally, the 2018 Legislature amended the definition of marijuana to exempt cannabidiol in SB 282.

Recent Legislation Introduced

Two bills that would have removed cannabis products containing less than 0.3 percent tetrahydrocannabinol (THC) from the list of controlled substances listed in Schedule I of the Uniform Controlled Substances Act were introduced in the 2020 Legislative Session (SB 449 and HB 2709). The Senate Committee on Agriculture and Natural Resources held a hearing on SB 449, but no further action was taken on the bill. HB 2709 also died in the House Committee on Agriculture.

Two bills that would have authorized and regulated the use of medical marijuana were introduced in the 2020 Legislative Session (HB 2740 and HB 2742). Both bills were referred to the House Committee on Federal and State Affairs, with no further action taken in the 2020 Legislative Session. An identical version of HB 2742 was introduced in the 2020 Special Session (HB 2017) with no action taken.

Three bills that would have legalized the use of medical cannabis were introduced in the 2019 Legislative Session (SB 113, HB 2163, and HB 2413). The Senate Committee on Public Health and Welfare held a hearing on SB 113 but failed to take any further action on the bill.

Sub. for SB 155 (2017) would have amended law concerning nonintoxicating cannabinoid medicine (NICM). Under the bill, no person could have been arrested, prosecuted, or penalized in any manner for possessing, utilizing, dispensing, or distributing any NICM or any apparatus or paraphernalia used to administer the medicine. The bill would have specified the physicians issuing recommendation orders for NICM and pharmacists dispensing or distributing NICM could not have been subject to arrest, prosecution, or any penalty, including professional discipline. The bill was recommended for passage by the Senate Committee on Federal and State Affairs. At the beginning of the 2018 Session, the bill was rereferred to the senate committee and died in committee.

Medical Use of Marijuana in Other States

Thirty-six states and the District of Columbia have laws legalizing medical marijuana and cannabis programs. The laws in these states meet the following criteria: protection from criminal penalties for using marijuana for a medical purpose; access to marijuana through home cultivation, dispensaries, or some other system that is likely to be implemented; allowance for a variety of strains; and allowance of either smoking or vaporization of marijuana products, plant material, or extract.

Another 11 states allow use of low THC, high cannabidiol products for specific medical conditions or as a legal defense. Six states have recently enacted comprehensive medical marijuana laws after previously legalizing low THC products (Florida, Mississippi, Missouri, Oklahoma, Utah, and Virginia).

Recreational Use of Marijuana

Fifteen states (Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, and
Washington) and the District of Columbia have legalized the recreational use of marijuana as of November 2020.

Illinois and Vermont legalized recreational marijuana through the legislative process, while the remaining states used a ballot initiative.

Penalties and Decriminalization

Marijuana Opportunity Reinvestment and Expungement Act of 2019 (MORE Act of 2019)

The U.S. House of Representatives passed the MORE Act of 2019 on December 4, 2020. The bill would remove marijuana from the list of scheduled substances under the Controlled Substances Act and eliminate criminal penalties for an individual who manufactures, distributes, or possesses marijuana. The bill was referred to the Senate Committee on Finance on December 7, 2020.

In Kansas, SB 112 (2017) reduced the severity level for unlawful possession of drug paraphernalia from a class A to a class B nonperson misdemeanor when the drug paraphernalia was used to cultivate fewer than five marijuana plants or used to store, contain, conceal, inject, ingest, inhale, or otherwise introduce a controlled substance into the human body.

Local Ordinances

On June 13, 2017, the Wichita City Council voted to approve an ordinance passed by Wichita voters in April 2015 that would reduce the penalty for first-time marijuana possession. The ordinance would impose up to a $50 fine for first-time offenders 21 years of age and older who possess less than 32 grams of marijuana.

On March 19, 2019, the Lawrence City Commission voted to decrease the penalty for first- and second-time offenders 18 years of age or older who possess less than 32 grams of marijuana to $1.00.

Other States

Twenty-seven states and the District of Columbia have decriminalized the use of small amounts of marijuana. Additional decriminalization efforts were introduced in 19 states in 2019, and 14 more bills were introduced in 2020.

In addition to legalization and decriminalization, efforts to reduce penalties related to marijuana were before 18 state legislatures in 2019 and 2020.

Commercial and Industrial Use—Hemp

In 2019, Senate Sub. for HB 2167 created the Commercial Industrial Hemp Act (Act), which requires the Kansas Department of Agriculture (KDA), in consultation with the Governor and Attorney General, to submit a plan to the U.S. Department of Agriculture (USDA) under which the KDA would monitor and regulate the commercial production of industrial hemp within Kansas in accordance with federal law and any adopted rules and regulations. The bill includes “industrial hemp” as an exception to the definition of “marijuana” in the definition sections of crimes involving controlled substances. The bill also excludes from the Schedule I controlled substances list any THC in:

• Industrial hemp, as defined by the Act;
• Solid waste and hazardous waste, as defined in continuing law, that is the result of the cultivation, production, or processing of industrial hemp, as defined in the Act, and the waste contains a THC concentration of not more than 0.3 percent; or
• Hemp products as defined in the Act, unless otherwise considered unlawful.

In 2018, SB 263 enacted the Alternative Crop Research Act, which allows the KDA, either alone or in coordination with a state institution of higher education, to grow and cultivate industrial hemp and promote the research and development of industrial hemp, in accordance with federal law. The bill allows individuals to participate in the research program under the authority of the KDA. The bill amends KSA 2018 Supp. 21-5701, dealing with criminal law, and KSA 65-4101, dealing with controlled substances, excluding “industrial hemp” from the definition of “marijuana,” when cultivated, possessed, or used for activities authorized by this act.