After Arkansas voters approved the Medical Marijuana Amendment, was the legislature obligated to fund and implement it even though marijuana remains illegal under federal law?

Plain-English summary

Arkansas voters approved the Arkansas Medical Marijuana Amendment of 2016 (Amendment 98) at the November 2016 general election. State Representative Douglas House asked AG Leslie Rutledge two questions about the immediate aftermath:

1. Was the legislature obligated by the AMMA to take steps facilitating manufacture and distribution of cannabis, even though those activities violate federal law?
2. Would voting for or executing AMMA implementing legislation create personal liability for state officials under federal Controlled Substances Act, RICO, tax, or FDA statutes?

The AG answered the first question yes: the AMMA's plain text mandated establishment of the Medical Marijuana Commission Fund and appropriation of AMMA revenues. The AG declined to opine on the second question because resolving it depended on federal law interpretation, which falls outside the AG's statutory opinion authority under Ark. Code Ann. § 25-17-706.

The AG nonetheless offered practical observations: federal Department of Justice guidance (the Cole Memo) had narrowed federal prosecutorial focus to large-scale commercial operations, and at least one state high court had rejected aiding-and-abetting liability for officials implementing a medical-marijuana law (White Mountain Health Center, Inc. v. Maricopa County in Arizona).

Currency note

This opinion was issued in 2017. 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.

The Cole Memo was rescinded by Attorney General Sessions in January 2018, replaced by a directive returning enforcement priorities to U.S. Attorney discretion. Federal cannabis enforcement policy has continued to evolve through subsequent administrations. The AMMA itself was implemented by Acts 593, 594, 595, 596, 638, and 740 of 2017 and has been amended multiple times since. Check current Arkansas implementing statutes and current federal DOJ guidance before relying on any aspect of this 2017 analysis.

What the AMMA mandated

The opinion identified the specific mandatory provisions:

• § 17(b)(4)(B) required creation of the Medical Marijuana Commission Fund.
• § 17(b)(6) required creation of a Vocational and Technical Training Special Revenue Fund for grants to technical institutes and vo-tech schools.
• §§ 17 and 18 required appropriation of state sales tax revenues and other AMMA revenues to state agencies charged with administering the program.
• § 18(a)(4), (b)(4), (c)(4) authorized (but did not require) additional appropriations depending on availability of funds.

The legislature retained ordinary policy discretion over the details of implementing legislation, but it could not refuse to fund or establish the structures the AMMA explicitly required.

What the AG could not decide

Ark. Code Ann. § 25-17-706 limits the AG's official opinion authority to questions of state law. The federal Controlled Substances Act (21 U.S.C. §§ 801-904) prohibits possession and distribution of marijuana with no medical exception, as confirmed in Gonzales v. Raich, 545 U.S. 1 (2005). Whether implementing the AMMA would expose state officials to federal CSA, RICO, tax, or FDA liability is a question of federal law that the AG cannot definitively answer.

The AG flagged practical considerations:

• The Cole Memo (Aug. 29, 2013) directed federal prosecutors to deprioritize state-regulated marijuana activity if the state has effective regulatory measures.
• Federal enforcement focus had narrowed to large-scale commercial operations and criminal networks.
• White Mountain Health Center in Arizona had rejected an attempt to use federal preemption to invalidate state and county officials' AMMA implementation duties.

Common questions

What is the AMMA?
The Arkansas Medical Marijuana Amendment of 2016 (Amendment 98 to the Arkansas Constitution), approved by voters at the November 2016 general election. It legalized medical marijuana in Arkansas and created the Medical Marijuana Commission to license cultivators, processors, and dispensaries.

Was the AMMA self-executing or did it need legislation?
Both. Some provisions are self-executing (the basic legalization for qualifying patients), but the regulatory and fiscal infrastructure required legislative action. The AG's opinion addressed the legislative-action requirements.

Why couldn't the AG just answer the federal question?
Because Ark. Code Ann. § 25-17-706 limits the AG's official opinion power to state law questions. The AG can describe federal law as relevant background but cannot issue an authoritative opinion interpreting federal statutes the way it can for state law.

Has any state official actually been prosecuted for implementing a state medical-marijuana law?
Not under the federal CSA as far as the public record shows. The Cole Memo and its successors reflect a federal policy choice to focus on commercial operators, not implementers. But that's prosecutorial discretion, not an immunity rule, and the AG was right to flag that "decisions lie in the discretion of federal officials."

What was the practical effect of this opinion?
It told the legislature that it could not refuse to implement the AMMA or fund the Medical Marijuana Commission. It also gave the legislature legal cover by noting the federal-law concerns were unlikely to ripen into actual prosecutions of state actors.

Background and statutory framework

Amendment 98 of the Arkansas Constitution (the AMMA) established the Medical Marijuana Commission, set out the regulatory structure for cultivators, processors, and dispensaries, and created the funding mechanism. Section 17 sets out the fund structures; Section 18 governs distributions and appropriations.

The federal Controlled Substances Act, 21 U.S.C. §§ 801-904, classifies marijuana as a Schedule I controlled substance. Gonzales v. Raich, 545 U.S. 1 (2005), confirmed federal authority to apply the CSA even to medical marijuana grown and consumed entirely within a state. United States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006), held that compliance with state medical-marijuana law is no defense to federal CSA prosecution.

DOJ enforcement policy has shifted multiple times. The Ogden Memo (2009) deprioritized prosecutions of patients and primary caregivers complying with state medical-marijuana laws. The Cole Memo (2011, updated 2013) extended that to commercial operations in states with "strong and effective regulatory and enforcement systems," subject to specified federal priorities. The Sessions Memo (January 2018) rescinded the Cole framework. None of these memoranda were ever law; they only directed prosecutorial discretion.

Citations

• Ark. Code Ann. § 25-17-706 (AG opinion authority limited to state law)
• Amendment 98 to the Arkansas Constitution (AMMA), §§ 17, 18
• 21 U.S.C. §§ 801-904 (Controlled Substances Act)
• Gonzales v. Raich, 545 U.S. 1 (2005)
• United States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006)
• White Mountain Health Center, Inc. v. Maricopa County (Ariz. Super. Ct. Dec. 20, 2012)
• DOJ Memorandum re: Marijuana Enforcement (Aug. 29, 2013) (Cole Memo)
• DOJ Memorandum re: Ogden Memo guidance (Oct. 19, 2009)
• Barbara L. Johnson, Marijuana and the Workplace, SY002 ALI-CLE 665

Source

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

Original opinion text

Opinion No. 2016-119
January 24, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESUE RUTLEDGE
The Honorable Douglas House
State Representative
8923 Bridge Creek Road, CA TO
North Little Rock, AR 72120-9469
Dear Representative House:
This is in response to your request for an op1mon concerning the Arkansas
Medical Marijuana Amendment of 2016, which voters approved at the November
2016 general election. You ask in this regard:

1. Are members of the Legislature obligated, under the terms of the
   Marijuana Amendment, to take certain actions that would
   facilitate the manufacture and delivery of cannabis in violation of
   the laws of the United States?
2. Would voting to pass laws and regulations to carry out the
   purposes of the Marijuana Amendment, or the execution of such
   laws and regulations by the executive, constitute a violation of
   such laws of the United States? Of particular concern are the
   statutes prohibiting manufacture and distribution, conspiracy, and
   the Racketeer Influenced Corrupt Organization statutes [and] ...
   federal tax statutes and Food and Drug Administration laws that
   bear on the subject of cannabis, as well as others [that] may be
   relevant to my inquiry. 1
   1 You also ask me to advise whether the President of the United States or the United States
   Attorney General has taken any action to immunize state officials or employees from prosecution.
   I am unaware of any such action, but must nevertheless respectfully decline to advise you in this
   regard. The scope of my review in the context of providing an official Attorney General opinion
   is limited to questions of state law. See Ark. Code Ann.§ 25-17-706 (Repl. 2014). You may
   323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
   TELEPHONE (501) 682-2007 · FAX (501) 682~8084
   ARKANSASAG.GOV The Honorable Douglas House
   State Representative
   Opinion No. 2016-119
   Page 2
   RESPONSE
   In response to your first question, the actions required of the General Assembly
   under the Arkansas Medical Marijuana Amendment of 2016 ("AMMA" or
   "Amendment") appear to be mandatory under the plain terms of the Amendment.
   More specifically, based on the AMMA's plain terms, it is my opinion that the
   General Assembly lacks discretion to decide whether to establish the Medical
   Marijuana Commission Fund or appropriate revenues arising under the
   Amendment. I am unable to opine on your second question, as it depends upon
   the interpretation and application of federal law.
   DISCUSSION
   Question I: Are members of the Legislature obligated, under the terms of the
   Marijuana Amendment, to take certain actions that would facilitate the
   manufacture and delivery of cannabis in violation of the laws of the United
   States?
   The General Assembly is obligated under the plain terms of the Arkansas Medical
   Marijuana Amendment of 2016 to create a fund to defray certain administrative
   and regulatory costs under the AMMA.2 The General Assembly will also be
   required to appropriate state sales tax revenues and other revenues generated under
   the AMMA, for proper distribution to state agencies charged with administering
   various aspects of the Amendment. 3 The AMMA authorizes the General
   Assembly to enact additional appropriations, depending upon the availability of
   other funds.4 Based on the Amendment's plain terms, however, the General
   Assembly lacks discretion to decide whether to establish the Medical Marijuana
   Commission Fund or appropriate revenues arising under the Amendment.
   wish to refer this inquiry to the named federal offices, or the U.S. Attorney for the Eastern or
   Western District of Arkansas.
   2 See AMMA at § 17(b)(4)(B) (requiring the creation of the "Medical Marijuana Commission
   Fund."). The AMMA also calls for the General Assembly's creation of a "Vocational and
   Technical Training Special Revenue Fund" to be used for grants to technical institutes and vo-
   tech schools. Id. at § 17(b )( 6).
   3 See id. at §§ 17 and 18.
   4 See id. at§ 18(a)(4), (b)(4), and (c)(4). The Honorable Douglas House
   State Representative
   Opinion No. 2016-119
   Page 3
   Question 2: Would voting to pass laws and regulations to carry out the purposes
   of the Marijuana Amendment, or the execution of such laws and regulations by
   the executive, constitute a violation of such laws of the United States? Of
   particular concern are the statutes prohibiting manufacture and distribution,
   conspiracy, and the Racketeer Influenced Corrupt Organization statutes /and]
   ... federal tax statutes and Food and Drug Administration laws that bear on the
   subject of cannabis, as well as others [that] may be relevant to my inquiry.
   The resolution of this question depends upon the interpretation and application of
   federal law, which are matters falling outside the scope of an opinion from this
   office.5
   The federal Controlled Substances Act ("CSA")6 prohibits the possession and
   distribution of marijuana; and there is no exception for marijuana used for medical
   purposes. 7 The AMMA thus cannot act as a shield to federal criminal prosecution
   under the CSA. 8 As an abstract legal matter, because federal law prohibits the
   possession and distribution of marijuana and there is no exception for medical
   marijuana, it is impossible to definitively say that no state government official or
   employee could be subject to prosecution for actions required by the AMMA.
   Such decisions lie in the discretion of federal officials.9 Nevertheless, I believe it
   5 See note I, supra.
   6 21 U.S.C. §§ 801-904.
   7 See id. at§§ 841(a), 844(a). See also Gonzalez v. Raich, 545 U.S. I (2005).
   8 See, e.g., Unites States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006).
   9 The U.S. Department of Justice ("DOJ'') has issued guidance several times to federal
   prosecutors in states with medical marijuana laws, most recently in 2013, as far as we are able to
   determine. Prompted apparently by "an increase in the scope of commercial cultivation, sale,
   distribution and use of marijuana for purported medical purposes," a 2011 DOJ memorandum
   stressed that those in the business of operating or facilitating medical marijuana dispensaries are
   not shielded from federal prosecution, notwithstanding their compliance with state law, and gave
   federal prosecutors the discretion to prosecute such persons if such actions are consistent with
   resource constraints. Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney
   General, Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana
   for Medical Use 1-2 (Oct. 19, 2009) (available at http://www.justice.gov/oip/docs/dag-guidance-
   201 l-formedical-marijuana-use.pdf). Then, in 2013, in response to increased state legislation
   concerning marijuana, another DOJ memorandum concluded that where states have implemented
   effective regulatory measures, "enforcement of state law by state and local law enforcement and
   regulatory bodies should remain the primary means of addressing marijuana-related activity." The Honorable Douglas House
   State Representative
   Opinion No. 2016-119
   Page 4
   is more likely than not that such a prosecution would fail. At least one state's high
   court has rejected an argument that public employees could be liable as "aiders or
   abettors" by complying with their obligations under their state's medical
   marijuana law.10
   Moreover, as a practical matter, I suspect that those actually possessing and
   distributing marijuana are the ones more likely to face the prospect of federal
   prosecution, as opposed to either state lawmakers who must enact laws in
   accordance with the AMMA or executive-branch officials who must enforce the
   Amendment. 11
   I regret that I cannot provide a more definitive answer to your question. However,
   the foregoing will hopefully be of some guidance. Elected officials in other states
   have requested letters from U.S. Attorneys in their districts for guidance on the
   question of potential criminal liability of individuals who implement their medical
   marijuana laws.
   Sincerely,
   ~~
   LESLIE RU;L:~
   Attorney General
   Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney General, Guidance
   Regarding Marijuana Enforcement (Aug. 29, 2013) (available at https://www.justice.gov/iso
   /opa/resources/3052013829132756857467.pdf). Reviewing both memoranda leads me to
   conclude that while one cannot definitively exclude potential federal liability, the emerging trend
   is a focus on large-scale marijuana commercial operations, and possibly those involving "criminal
   networks." See Barbara L. Johnson, Marijuana and the Workplace, SY002 ALI-CLE 665 (citing
   the 2013 DOJ memo and observing that federal law enforcement efforts have been narrowed to
   "criminal networks engaged in drug trafficking.").
   10 White County v. Maricopa County, CV 2012-053585 (Ariz. S. Ct., December 20, 2016)
   (rejecting attempt to invoke federal preemption to invalidate actions required of the State of
   Arizona and Maricopa County under the Arizona Medical Marijuana Act).
   11 Enforcement policies are of course subject to change with administrations. But according to
   the 2013 DOJ memorandum, the DOJ is "committed to using its limited investigative and
   prosecutorial resources to address the most significant threats in the most effective, consistent,
   and rational way." Guidance Regarding Marijuana Enforcement Memorandum at 1. The memo
   also outlines "enforcement priorities" that notably do not include pursuing government personnel
   who implement state medical-marijuana regulatory systems. Id. at 2.