Why did the Arkansas Attorney General reject Mary L. Berry's revised April 2016 Arkansas Cannabis Amendment?

Plain-English summary

Mary L. Berry resubmitted a revised version of her Arkansas Cannabis Amendment for AG certification under Ark. Code Ann. § 7-9-107. The earlier version was rejected in Op. Att'y Gen. 2016-021. The revised version preserved the basic architecture (licensing system for cultivation and sale by people 21+, 5% excise tax on recreational sales, medical-marijuana access, expungement) but adjusted a few definitions and added an acknowledgement that the listed activities were unlawful under federal law.

AG Leslie Rutledge again rejected the popular name and ballot title. Three ambiguities remained or appeared:

1. Federal-law conflict, even with acknowledgement. Section 2 still said cannabis activities "shall be lawful" within the state. The revised draft added a clause acknowledging federal-law conflict, but the AG's view was that the "shall be lawful" framing remained inherently misleading. The acknowledgement did not erase the false impression that voters might form.
2. Paraphernalia loophole still present. Section 3 still defined "marijuana paraphernalia" to include anything used for "storing" marijuana (among other things). Section 7 still declared the manufacture, sale, and possession of paraphernalia lawful. The combination still arguably legalized currently-unlawful items through the storing-marijuana shortcut. The AG had flagged the same defect in Op. Att'y Gen. 2016-021; the revision did not fix it.
3. "General assembly may adopt rules and regulations" structurally wrong. Sections 5 and 6 of the revised proposal said the provisions did not "preclude[] the imposition of additional rules and regulations that the general assembly may adopt and impose." The AG flagged a category error: the General Assembly enacts laws (statutes). Rules and regulations are adopted by agencies and other administrative bodies, typically operating under a statutory grant of rulemaking authority. The provisions were therefore of uncertain meaning. Did the sponsor mean the legislature could enact additional regulatory statutes? Or could agencies adopt rules under the cannabis amendment's authority? Or both?

The AG could not substitute a clearer ballot title under § 7-9-107(b) without text revisions. § 7-9-107(c) lets the sponsor revise and resubmit, but the AG noted (as she did in earlier rejections) that further ambiguities might come to light on review of any revisions.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Two rejections, two sponsors, same problems

By April 2016, the AG had rejected multiple cannabis amendments from two distinct sponsors (Don Lane's Cannabis Restoration Amendment in 2016-024 and 2016-034; Mary Berry's Arkansas Cannabis Amendment in 2016-021 and 2016-033). The recurring problems were:

• "Shall be lawful" framing that conflicted with federal law.
• Paraphernalia definitions that swept past the legitimate scope of paraphernalia.
• Definitional circularity between "recreational" and other uses.
• Scope ambiguities in the regulation hooks.

The April 2016 Berry version added a new problem: confusing the General Assembly's legislative power with agency rulemaking authority. The AG's flag on this is doctrinally important. Constitutions and statutes are enacted by the legislature; rules and regulations are adopted by agencies under statutory authority. Conflating the two leaves voters unsure who could change what after passage.

What a successful drafter would have done

Other proposals (most notably the medical-marijuana initiative that became Issue 6 in November 2016) handled the same regulatory architecture with more discipline. Issue 6 designated specific agencies for rulemaking, specified the rules the General Assembly could enact, and avoided the "shall be lawful" framing in favor of permitting specific conduct. Drafting precision is the difference between certification and rejection.

Common questions

Q: Why was Berry's cannabis amendment rejected a second time?
A: The revised version kept the federal-law-conflict and paraphernalia-loophole problems from the first version, and added a new problem about confusing the General Assembly's legislative role with agency rulemaking authority. The AG could not write a fair ballot title summarizing what voters would actually be adopting.

Q: Did this amendment make the 2016 ballot?
A: No. Both Berry's and Lane's cannabis amendments fell short of certification. The Medical Marijuana Amendment (Issue 6), drafted by a different sponsor, made the ballot and was approved by voters.

Q: What is the difference between a "law" enacted by the General Assembly and a "rule" or "regulation" adopted by an agency?
A: The General Assembly passes statutes through the bicameral legislative process. Agencies adopt rules and regulations under a statutory grant of rulemaking authority, typically through a notice-and-comment process administered by the executive branch. A constitutional amendment that says the General Assembly "may adopt rules and regulations" mixes the categories.

Q: Could the sponsor fix it again?
A: § 7-9-107(c) allows resubmission. The AG cautioned that further ambiguities might come to light on review. Drafting precise constitutional text requires the sponsor to scrub each cross-reference, definition, and regulatory hook.

Citations and references

Statutes: Ark. Code Ann. § 7-9-107 (Supp. 2015); § 7-9-107(b), (c); § 7-5-309.

Cases: Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950); Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990); Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Request for certification of the popular name and ballot title of a constitutional amendment proposed to provide for regulation of industrial hemp, allow the purchase, possession and cultivation of recreational and medical marijuana, and other purposes. RESPONSE: Rejected due to ambiguities in the proposal's text.

Original opinion text

The full text follows the AG's standard ballot-title rejection format. The complete original (which also reproduces the full text of the proposed amendment with revised definitions and a new federal-law acknowledgement) is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2016-033
April 7, 2016
Mary L. Berry, Sponsor
[Standard rejection letter with the AG's enumeration of the three specific ambiguities described above (federal-law conflict despite acknowledgement, paraphernalia loophole, and structurally wrong "general assembly may adopt rules and regulations" formulation).]
Sincerely,
LESLIE RUTLEDGE
Attorney General