Why did the Arkansas AG reject Mary L. Berry's proposed Arkansas Cannabis Amendment ballot title?

Plain-English summary

Mary L. Berry asked Attorney General Leslie Rutledge to certify the popular name and ballot title for a proposed Arkansas Cannabis Amendment. Rutledge rejected the submission on two grounds. First, the title misleadingly suggested that activities involving only the Cannabis sativa variety remained illegal under federal law. The opinion explains that federal courts have read the federal Controlled Substances Act's term "Cannabis sativa L." to cover all marijuana-producing cannabis varieties. Second, the title did not adequately explain how the proposal would change the recently approved Arkansas Medical Marijuana Amendment of 2016 (AMMA).

This was a renewed rejection. Rutledge wrote, "I must again reject," and the opinion refers to an earlier warning to Berry about the proposal's unclear effect on the AMMA. The decision concerns certification of a ballot title before petitions circulate; it does not decide the merits of legalization.

Currency note

This opinion was issued in 2017. Check current election and cannabis law before applying its analysis to a new proposal.

Common questions

Q: What was misleading about the title's description of federal law? A: It said the proposed state-law legalization would leave activities involving "Cannabis Sativa L" unlawful under federal law. Rutledge said that phrasing implied other marijuana-producing cannabis varieties were outside the federal prohibition. The opinion cites federal courts reading the Controlled Substances Act's term to cover all such varieties.

Q: What was missing from the title's treatment of the AMMA?
A: Rutledge said the title made little or no effort to summarize how Berry's proposal would alter the existing medical marijuana amendment. The proposal touched matters covered by the AMMA, and its effect on that amendment remained unclear.

Q: Did the Attorney General write a substitute ballot title?
A: No. She said she could modify a proposed title to make it more accurate, but could not create an "independent product" to fill the proposal's gaps. Berry could revise and resubmit the measure and title.

Q: Did the opinion decide whether the proposal should become law? A: No. Rutledge said the certification review did not consider the measure's merits. She evaluated whether the popular name and ballot title accurately and fairly summarized the proposal for voters.

Background and statutory framework

Ark. Code Ann. § 7-9-107 requires the AG to review a proposed popular name and ballot title before petition circulation. The opinion says a title must honestly, intelligibly, and fairly describe the proposed measure. Rutledge cited Bradley v. Hall for the need to inform voters about changes to existing law.

The misleading federal-law statement was the first stated ground for rejection. The AMMA issue was an additional ground: voters could not assess the proposal's effect on the recently approved amendment from this title. Rutledge also declined to list every ambiguity in the proposal because doing so would amount to drafting it for the sponsor.

Citations

• Ark. Code Ann. § 7-9-107
• 21 U.S.C. § 802(16)
• United States v. White Plume, 447 F.3d 1067 (8th Cir. 2006)
• Bradley v. Hall, 220 Ark. 925 (1952)
• Dust v. Riviere, 277 Ark. 1 (1982)

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-138
January 4, 2017
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated measure. At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not consider the merits of the measure when making my determination to certify or reject a popular name and ballot title. The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may, ifpracticable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition. Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Mary L. Berry, Sponsor Opinion No. 2016-138 Page 2 law,"1 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities.2 Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposal. The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act. 3 REQUEST You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment: Popular Name Arkansas Cannabis Amendment Ballot Title An amendment to the Arkansas Constitution concemmg the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful in respect to the Cannabis Sativa L species of the plant under federal law; providing for the release from 1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). 2 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1984). Mary L. Beny, Sponsor Opinion No. 2016-138 Page 3 incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into industrial hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of industrial hemp and products produced therefrom; providing that anyone 18 years of age or older may obtain an industrial hemp license permitting the person to cultivate industrial hemp; authorizing both medical and recreational use of marijuana; providing that anyone 21 years of age or older may obtain a marijuana license permitting the person to cultivate, produce, and sell marijuana and products produced therefrom; providing that a licensed person may cultivate up to 36 cannabis plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% excise tax; providing that the State shall not impose any tax on the sale of medical marijuana to patients; permitting medical marijuana facilities established by the Arkansas Medical Marijuana Amendment of 2016 to also cultivate, produce, and sell recreational marijuana; adding additional medical conditions to the qualifying medical conditions list; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under State law; and providing that the amendment (a) is not intended to require employers to permit activities relating to marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, ( c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, ( d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana. RESPONSE The popular name is primarily a useful legislative device. 4 It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the 4 Pajfordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). Mary L. Berry, Sponsor Opinion No. 2016-138 Page 4 proposal. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.6 The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. 7 According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[s]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth."8 A ballot title's failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" may lead the Court to conclude that the "omission is significant."9 The Court has also disapproved the use of terms that are "technical and not readily understood by voters."10 Without a definition of such terms in the ballot title, the title may be deemed insufficient. 11 Additionally, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed."12 At the same time, however, a ballot title must be brief and concise; 13 otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. 14 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal 5 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). For a better understanding of the term "partisan coloring," see note 16 ;njra. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 7 Becker v. R;viere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted). 8 Lange v. Martin, 2016 Ark. 337, 9, at n. 2. 9 Id. at 9. 10 Wilson v. Martin, 2016 Ark. 334, *9. 11 Id. 12 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 13 See Ark. Code Ann.§ 7-9-107(b). 14 Bailey at 284, 884 S.W.2d at 944. Mary L. Berry, Sponsor Opinion No. 2016-138 Page 5 argument the proposed measure might evoke.15 The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring."16 The ballot title must be honest and impartial, 17 and it must convey an intelligible idea of the scope and significance of a proposed change in the law. 18 Furthermore, the Court has confirmed that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.19 The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself. "20 Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without (I) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal. Having analyzed your proposed constitutional amendment, as well as your proposed popular name and ballot title in line with the above precepts, I conclude that I must again reject your proposed popular name and ballot title for a constitutional amendment concerning Cannabis. I must reject your proposed ballot title as misleading. Additionally, the ballot title you have submitted does not sufficiently inform voters about the changes in current law that they are being asked to approve. It fails to give voters a full understanding of how the proposed 15 Id. at 293, 844 S.W.2d at 946-47. 16 Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)). 17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 18 Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted). 19 Cf Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). 20 Id. Mary L. Berry, Sponsor Opinion No. 2016-138 Page 6 constitutional amendment relates to the recently approved Arkansas Medical Marijuana Amendment of 2016, which deals with matters that overlap your proposal. I am unable, in light of these deficiencies, to proceed further with a substantive review of your submission. You may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. To aid your redesign, I will expand upon the more concerning deficiencies that prevent me from undertaking a more studied review of your proposal at this time. Misleading Ballot Title Your proposed ballot title describes the measure in part as: An amendment to the Arkansas Constitution concemmg the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful in respect to the Cannabis Sativa L species of the plant under federal law[.] This is a summary of the acknowledgment in Section 2 of the text of your measure that "the listed activities with respect to Cannabis Sativa L species of the
[cannabis] plant remain illegal under federal law .... " Section 3(a) of the text then defines "Cannabis Sativa L" as "a species of the genus cannabis plant that is defined what is [sic] marihuana pursuant to Title 21 United States Code Controlled Substance Act subchapter 1 § 802 Definition." (Emphasis added). This language of your measure is more or less accurate in describing the term "Cannabis sativa L.," as defined in the federal Controlled Substances Act (CSA).21 However, it inaccurately implies that the CSA outlaws only the type of cannabis commonly known as "Cannabis sativa." Federal circuit courts have uniformly rejected the argument that the CSA outlaws only that type of cannabis. The courts have concluded that the term "Cannabis sativa L." in the CSA covers all varieties 21 21 U.S.C. § 802(16) (defining marijuana in relevant part as "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin."). Mary L. Berry, Sponsor Opinion No. 2016-138 Page 7 of the Cannabis plant. As stated by the Eight Circuit Court of Appeals: "We are persuaded that Congress adopted 'Cannabis sativa L.' believing it to be the term that scientists used to embrace all marihuana-producing Cannabis; the other named sorts were not seen as separate Cannabis species."22 The cultivation and possession of all plants popularly known as marijuana-to the extent they possess the chemical THC-are therefore illegal under federal law, regardless of the existence of marijuana commonly referred to as something other than "Cannabis sativa. "23 Your measure's text - and hence your proposed ballot title - are misleading in suggesting that the activities made lawful by your proposed amendment remain unlawful under federal law only with respect to the type of cannabis commonly known as "Cannabis sativa." The ballot title is consequently insufficient under the guidelines established by the Court and must be rejected. Changes in Law The ballot title must both accurately summarize the proposed measure's text and sufficiently inform the voters about the changes in current law they are being asked to approve. I must draw your attention to the latter requirement. Your proposal relates in some respects to matters that are addressed in the recently approved Arkansas Medical Marijuana Amendment of 2016 (AMMA). If approved, your amendment will likely change the AMMA in some ways. However, the ballot title you have submitted evidences little or no effort to summarize how your proposal will alter the AMMA. The Arkansas Supreme Court has elaborated on the duty to describe the changes in law a proposal is to make: It is evident that before determining the sufficiency of the present ballot title we must first ascertain what changes in the law would be brought about by the adoption of the proposed amendment. For the 22 United States v. White Plume, 447 F.3d 1067, 1071 (8th Cir. 2006); see also United States v. Proyect, 989 F.2d 84 (2nd Cir. 1993), cert. denied, 510 U.S. 822 (1993); United States v. Kelly, 527 F.2d 961 (9th Cir. 1976); United States v. Walton, 514 F.2d 201, 202-03 (D.C.Cir.1975); United States v. Honneus, 508 F.2d 566, 575 (1st Cir. 1974), cert. denied, 421 U.S. 948 (1975); United States v. Moore, 446 F.2d 448, 450 (3rd Cir. 1971), cert. denied, 406 U.S. 909 (1972). 23 See 28 C.J.S. Drugs and Narcotics § 221. Mary L. Berry, Sponsor Opinion No. 2016-138 Page 8 elector, in voting upon a constitutional amendment, is simply making a choice between retention of the existing law and the substitution of something new. It is the function of the ballot title to provide information concerning the choice that he is called upon to make. Hence the adequacy of the title is directly related to the degree to which it enlightens the voter with reference to the changes that he is given the opportunity of approving. 24 Without information regarding the extent to which your proposal would change current law, it will be impossible for a voter to make an informed "choice between retention of the existing law and the substitution of something new."25 The Court has held that "a ballot title is not insufficient merely because it fails to reflect the current state of the law."26 But a ballot title will be deemed insufficient if it does not give the voters a clear understanding of the "extent and import" of the proposal, particularly when they are being asked to amend the constitution: If the voter knows the extent and import of such a proposal, it is the voter's decision, not ours, as to the wisdom of the proposal. But at the same time the voters have placed on this court the duty and responsibility to see that when they vote that change, or decline to vote that change, especially one to alter their constitution, they are allowed to make an intelligent choice, fully aware of the consequences of their vote. 27 In my opinion, your ballot title fails to adequately convey the proposed change(s) in law so that the voters will have a fair understanding of the issue(s).28 It fails to give the voters a full understanding of how the proposed constitutional amendment relates to the current AMMA that addresses the medical use of marijuana. The consequences of approval of your proposed constitutional amendment would doubtless be of serious concern to voters weighing the merits of your measure. Accordingly, a more complete effort to summarize and explain to voters how the
?4 - Bradley v. Hall, 220 Ark. 925, 927, 251 S.W.2d 470, 471 (1952). 2s Id. 26 May at 116, 194 S.W.Jd at 783. 27 Dust v. Riviere, 277 Ark. 1, 4, 638 S.W.2d 663, 665 (1982). 28 Compare Scott v. Priest, 326 Ark. 328, 332, 932 S.W.2d 746, 747 (1996). Mary L. Berry, Sponsor Opinion No. 2016-138 Page 9 proposal would change current law in this respect must be undertaken. Without such, the ballot title is deficient. The precise manner in which you acknowledge your proposal's effects on existing law is a matter for you to determine and submit to this office in draft form. While I can modify a proposed ballot title to render it a more accurate summary of the measure, I am not authorized to craft a ballot title that amounts to an independent product. Where a proposed ballot title does not comply with the rules governing the initiative process, including the requirement to summarize the proposal and its effects in a fair, accurate, and complete manner, and the ballot title is therefore significantly misleading, this office may decline to prepare a substitute. 29 Ambiguities In the normal course, this office attempts to point out and describe all the ambiguities contained in a proposal for which a ballot title is rejected because of such ambiguities. In this case, however, I have rejected your submission because of fundamental shortcomings in the ballot title as noted above. Any preparation of a list of ambiguities would go beyond the appropriate examination and certification process under Ark. Code Ann. § 7-9-107, and would be tantamount to acting as the proposal's drafter. I will therefore simply note that the extent to which your proposed amendment will alter the AMMA is unclear. I have previously drawn your attention to this ambiguity, which likely precludes the drafting of a sufficient ballot title for your measure. 30 Your current submission remains ambiguous in this respect. For example, Section 2 states that "the cultivation, production, distribution, sale, possession, and use of the cannabis plant . . . shall be regulated pursuant to the provisions of this amendment .... " It is unclear how this regulatory authority relates to or affects the "medical use" of marijuana that is protected under the AMMA. 31 The AMMA limits, and in certain respects prevents, amendments by 29 See Op. Att'y Gen. 2012-033 (and opinions cited therein). 30 Op. Att'y Gen. 20 I 6-122 at 6 (noting the "uncertainty and ambiguity about the extent to which the proposal will alter the AMMA."). 31 See AMMA at § 2(1 I) (defining "medical use") and § 3 (creating various protections for qualifying patients and designated caregivers in connection with the medical use of marijuana). Mary L. Berry, Sponsor Opinion No. 2016-138 Page 10 the General Assembly.32 It is unclear how your proposed amendment would affect those limitations and prohibitions. As another example of the uncertain effect of your measure on the AMMA, under Section 3(g) of your proposed amendment, a person holding a "marijuana license" can lawfully cultivate, produce, and sell marijuana "for recreational and medical purposes." (Emphasis added). It is unclear whether this is an entirely different licensing scheme, separate and apart from the authorization and regulation of medical marijuana under the AMMA. Clarifying the effect of your amendment on the AMMA will, in my opinion, be critical to a ballot title that will sufficiently inform the voters about the changes brought about by your proposal. Absent clarification, I believe the Arkansas Supreme Court would have serious concerns about voters' ability to fully understand and appreciate the issues presented in your proposed amendment. As the Court has stated: The voter should not have to be well versed in legal interpretation in order to decipher what is meant in a proposed constitutional amendment. Placing the voter in a position of either having to be an expert in the [given] subject ... or having to guess as to the effect his or her vote would have is impermissible. This is precisely the dire straits in which the voter is placed by the uncertain language contained in this measure. 33 Section 12 of the proposed amendment, entitled "Conflicting Laws," does not clarify the uncertainty surrounding the effect of your measure on the AMMA. To the contrary, as I have previously noted, the statement in this section that the proposal will supersede "conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions" adds to the uncertainty.34 This language, read literally, dispenses with the requirement that other "provisions" conflict with your proposed amendment in order to be superseded. To repeat my 32 See id. at§ 23. 33 Kurrus, supra note 1, 342 Ark. at 444, 29 S.W.3d at 674 (citing Dust, supra note 27, 277 Ark. 1, 638 S.W.2d 663). 34 Op. 2016-122 at 6. Mary L. Berry, Sponsor Opinion No. 2016-138 Page 11 previous statement, "[i]t is unclear whether the AMMA is an "other state provision" for this purpose. "35 CONCLUSION I am unable to proceed with a more substantive review of your submission due to the deficiencies noted above. In considering whether to submit a revised proposal, you should be aware that we may call attention to a proposal's ambiguities on any review, even though they may have been embodied or inherent in an earlier version of the proposal. If you have not done so already, you may wish to consult legal counsel or someone experienced in the drafting of legislation and/or the editing of legal documents before resubmitting your proposal. My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title.36 You may resubmit your proposed amendment along with a proposed popular name and ballot title at your convenience. Sincerely,
~#
LESLIE RUTLE~
Attorney General
3s Id.
36 Ark. Code Ann.§ 7-9-107(c). ARKANSAS CANNABIS AMENDMENT
(Popular Name)
(Ballot Title)
AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT, PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE OF THE CANNABIS PLANT AND PRODUCTS PRODUCED THEREFROM MAY NOT BE PROHIBITED UNDER STATE LAW, BUT SHALL BE REGULATED UNDER STATE LAW; RECOGNIZING THAT SUCH ACTIVITIES REMAIN UNLAWFUL IN RESPECT TO THE CANNABIS SATIVA L SPECIES OF THE PLANT UNDER FEDERAL LAW; PROVIDING FOR THE RELEASE FROM INCARCERATION, PROBATION, OR PAROLE OF ALL PERSONS WHOSE CURRENT AND ONLY CONVICTION(S) IN WHICH THEY ARE SERVING WERE OF STATE LAWS PERTAINING TO THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, AND POSSESSION OF MARIJUANA OR POSSESSION OF MARIJUANA PARAPHERNALIA, AND THE EXPUNGEMENT OF RECORDS RELATING TO SUCH CONVICTION(S); DIVIDING CANNABIS INTO INDUSTRIAL HEMP (CONTAINING 0.3% OR LESS THC) AND MARIJUANA (CONTAINING MORE THAN 0.3% THC); REGULATING THE CULTIVATION, PRODUCTION, DISTRIBUTION AND THE SALE OF INDUSTRIAL HEMP AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT ANYONE 18 YEARS OF AGE OR OLDER MAY OBTAIN AN INDUSTRIAL HEMP LICENSE PERMITTING THE PERSON TO CULTIVATE INDUSTRIAL HEMP; AUTHORIZING BOTH MEDICAL AND RECREATIONAL USE OF MARIJUANA; PROVIDING THAT ANYONE 21 YEARS OF AGE OR OLDER MAY OBTAIN A MARIJUANA LICENSE PERMITTING THE PERSON TO CULTIVATE, PRODUCE, AND SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT A LICENSED PERSON MAY CULTIVATE UP TO 36 CANNABIS PLANTS IN A LOCATION NOT SUBJECT TO PUBLIC VIEW WITHOUT OPTICAL AID; PROVIDING THAT SALES OF RECREATIONAL MARIJUANA WILL BE SUBJECT TO EXISTING SALES TAXES AND AN ADDITIONAL 5% EXCISE TAX; PROVIDING THAT THE STATE SHALL NOT IMPOSE ANY TAX ON THE SALE OF MEDICAL MARIJUANA TO PATIENTS; PERMITTING MEDICAL MARIJUANA FACILITIES ESTABLISHED BY THE ARKANSAS MEDICAL MARIJUANA AMENDMENT OF 2016 TO ALSO CULTIVATE, PRODUCE, AND SELL RECREATIONAL MARIJUANA; ADDING ADDITIONAL MEDICAL CONDITIONS TO THE QUALIFYING MEDICAL CONDITIONS LIST; PROVIDING THAT THE MANUFACTURE, POSSESSION, PURCHASE, SALE, AND DISTRIBUTION OF MARIJUANA PARAPHERNALIA IS LAWFUL UNDER STATE LAW; AND PROVIDING THAT THE AMENDMENT (A) IS NOT INTENDED TO REQUIRE EMPLOYERS TO PERMIT ACTIVITIES RELATING TO MARIJUANA IN THE WORKPLACE, (B) IS NOT INTENDED TO PERMIT DRIVING UNDER THE INFLUENCE OF MARIJUANA, (C) IS NOT INTENDED TO PERMIT THE TRANSFER OF RECREATIONAL MARIJUANA TO ANYONE UNDER 21 YEARS OF AGE, (D) NOR PERMIT ANYONE UNDER 21 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, POSSESS, OR USE RECREATIONAL MARIJUANA. Section 1. Short Title. This is an amendment to the Arkansas Constitution that shall be called "The Arkansas Cannabis Amendment." Section 2. Effective Date. Effective on and after: December 07, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) and the products produced therefrom shall be regulated pursuant to the provisions of this amendment, and made lawful in every geographic area of every county of this state under Arkansas law, but acknowledging that the listed activities with respect to Cannabis Sativa L species of the plant remain illegal under federal law and that the amendment shall have no effect on federal law. Section 3. Definitions. The following terms are defined for the purposes of this amendment: (a) "Cannabis Sativa L" means a species of the genus cannabis plant that is defined what is marihuana pursuant to Title 21 United States Code Controlled Substance Act subchapter 1 §802 Definitions. (b) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (.A9THC) content of the operator's blood exceeds thirteen micrograms per liter (13µg/L). (c) "Industrial hemp" means any part of the cannabis plant (genus Cannabis), living or not, containing three tenths of one percent (0.3%) or less, by dry weight, Delta-9-tetrahydrocannabinol (A9THC). (d) "Industrial hemp field tag or field tag" means a label issued by the state that a cultivator attaches to any post or fencing where industrial hemp is being grown, and is used for identifying ten (10) acres or less of industrial hemp plants. Each tag shall display the industrial hemp license account number and an expiration date that corresponds with the cultivator's industrial hemp license. Each field tag may be bar-coded or embedded with radio frequency identification (RFID) smart chip. (e) "Industrial hemp license" means a registration card issued by the state to a person who is a resident of the state and is eighteen (18) years of age or older to lawfully cultivate industrial hemp. Each license shall display a license account number, an expiration date, and the photo, name, date of birth, and current address of the holder. (f) "Marijuana" means any part of the cannabis plant (genus Cannabis), living or not, containing greater than three tenths of one percent (0.3%), by dry weight, Delta-9-tetrahydrocannabinol (A9THC). (g) "Marijuana license" means a registration card issued by the state to a person who is a resident of the state and is twenty-one (21) years of age or older to lawfully cultivate, produce, and sell marijuana and products produced from marijuana for recreational and medical purposes. Each license shall display a license account number, an expiration date, and the photo, name, date of birth, and current address of the holder. (h) "Marijuana paraphernalia" means any equipment, utensils, products, and materials which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, containing, or concealing recreational or medical marijuana, or for ingesting, inhaling or otherwise introducing recreational or medical marijuana into the human body. (i) "Marijuana plant tag or plant tag" means a label issued by the state that the cultivator attaches to the base or branch of a growing marijuana plant. Such a label may be bar-coded or be embedded with a radio frequency identification (RFID) smart chip. Each tag shall display the marijuana license account number and an expiration date that corresponds with the cultivator's marijuana license. U) "Medical marijuana" means marijuana and products produced from marijuana that is used for the treatment of a qualifying medical condition pursuant to the Arkansas Medical Marijuana Amendment of 2016. (k) "Physician" means a doctor of medicine or doctor of osteopathic medicine who holds a valid, unrestricted, and existing license to practice in the state of Arkansas and is registered with the United States Drug Enforcement Administration to prescribe controlled substances. (I) "Products produced" means items and substances manufactured from the cannabis plant (genus Cannabis) that may contain Delta-9-tetrahydrocannabinol (A9THC), whereas products produced from marijuana contain greater than three tenths of one percent (0.3%) Delta-9-tetrahydrocannabinol (A9THC) and products produced from industrial hemp contain three tenths of one percent (0.3%) or less A9THC. Any item whose components may contain a variation in .A9THC content that would span above the three tenths of one percent (0.3%) threshold is to be considered a product produced from marijuana. (m) "Qualifying patient or patient" means a person who has a qualifying medical condition pursuant to .the Arkansas Medical Marijuana Amendment of 2016. (n) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an intoxicant. (o)"Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational marijuana. (p) "Remuneration" means an act in which money is being paid to purchase marijuana. Section 4. The regulation of industrial hemp. The cultivation, production, distribution, sale, possession, and use of industrial hemp and products produced from industrial hemp shall be lawful in every geographic area of every county of this state under Arkansas law, and shall be regulated by the state, and such regulations shall include the following provisions, but do not preclude the imposition of additional rules, regulations, and penalties that the state may adopt and impose. (a) The cost of an industrial hemp license that shall be issued and required by the state shall not exceed thirty dollars ($30.00) a year, and there shall be no limit to the number of licenses issued in this state, and any person who is a resident of this state, and is eighteen years of age or older shall qualify to obtain such a license, providing that he or she has not had such a license permanently revoked by the state. (b) The cost of an industrial hemp field tag that shall be issued and required by the state to regulate the cultivation of industrial hemp shall not exceed ten dollars ($10.00) per field tag per year, and any person with an industrial hemp license as defined in Section 3(e) may obtain such tags, and there shall be no limit to the number of field tags allowed per licensed person per year. (c) Any person issued an industrial hemp license and field tag(s) may cultivate industrial hemp on property he or she owns, or with the consent of the person(s) who owns the property. (d) Any person who cultivates industrial hemp in Arkansas shall be required to have an industrial hemp license and field tag(s) failure to do so may result in the following: (1.) First offense: Upon conviction is guilty of a Class C misdemeanor, a penalty no greater than five-hundred dollars ($500) shall be imposed, up to thirty (30) days in jail, and a suspension to obtain an industrial hemp license for one year. (2.) Second offense: Upon conviction is guilty of a Class C misdemeanor, a penalty no greater than five-hundred dollars ($500) shall be imposed, up to thirty (30) days in jail, and a suspension to obtain an industrial hemp license for five years. (3.) Third offense: upon conviction is guilty of a Class B misdemeanor, a penalty no greater than one-thousand dollars ($1 ,000) shall be imposed, and up to ninety (90) days in jail, and a permanent revocation of an industrial hemp license. Section 5. The regulation of marijuana. The cultivation, production, distribution, sale, possession, and use of marijuana and products produced from marijuana shall be lawful in every geographic area of every county of this state under Arkansas law, and shall be regulated by the state, and such regulations shall include the following provisions, but do not preclude the imposition of additional rules, regulations, and penalties that the state may adopt and impose: (a) The cost of a marijuana license that shall be issued and required by the state shall not exceed thirty dollars ($30.00) per license per year, and there shall be no limit to the number of licenses issued in this state, and any person who is a resident of this state and is twenty-one (21) years of age or older shall qualify to obtain such a license, providing that he or she has not had such a license permanently revoked by the state. (b) The cost of a marijuana plant tag that shall be issued and required by the state to regulate the cultivation of marijuana produced in this state, shall not exceed six dollars ($6.00) per plant tag, and any person who has a marijuana license as defined in Section 3(g) shall qualify to obtain such tags, and there shall be a limit of thirty-six (36) plant tags allowed per year per licensed person. Marijuana plant tags may be purchased in any quantity, but not to exceed thirty-six (36) tags per licensed person per year. (c) The quantity of marijuana plants cultivated and displaying a marijuana plant tag shall be limited to thirty-six (36) growing plants per person who has a marijuana license, but the quantity of the products produced from marijuana shall not be limited. (d) Any person who is issued a marijuana license and plant tag(s) may cultivate marijuana in a location where the plant(s) is (are) not subject to public view without the use of binoculars, aircraft, or other optical aids on property he or she owns, or with the consent of the person(s) who owns the property. (e) On the effective date any person who is twenty-one (21) years of age or older may purchase, possess, and use recreational marijuana, and may distribute recreational marijuana without remuneration to another person who is twenty-one (21) years of age or older. (f) Any person with a marijuana license may sell the marijuana he or she cultivates to a licensed dispensary or cultivation facility. (g) Any person who cultivates marijuana in Arkansas, who are not a licensed dispensary or cultivation facility and who are cultivating exclusive of these establishments shall be required to have a marijuana license and each plant growing must have a plant tag, failure to do so may result in the following: (1.) First offense: upon conviction is guilty of a Class C misdemeanor, a penalty not greater than five-hundred dollars ($500) shall be imposed, up to 30 days in jail, and a suspension to obtain a marijuana license for one year. (2.) Second offense: upon conviction is guilty of a Class B misdemeanor, a penalty of one-thousand dollars ($1 ,000) shall be imposed, up to ninety days (90) days in jail, and a suspension to obtain a marijuana license for five years. (3.) Third offense: upon conviction is guilty of a Class B misdemeanor, a penalty not greater than one thousand dollars ($1,000) shall be imposed, up to ninety days (90) in jail, and a permanent revocation of a marijuana license. Section 6. Additional Qualifying Medical Conditions. On the effective date of this Amendment the Arkansas Department of Health shall add the following medical conditions to the list of qualifying medical conditions pursuant to § 2 subsection 13(c) of the Arkansas Medical Marijuana Amendment of 2016. (a) Adiposis Dolorosa (Dercum's Disease); Anorexia; Arnold-Chiari Malformation; Asthma; Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder (ADD/ADHD); Autism; Bipolar Disorder; Bulimia; Causalgia; Chronic Inflammatory Demyelinating Polyneuropathy (CIDP); Chronic Insomnia; Chronic Obstructive Pulmonary Disease (COPD); Complex regional pain syndrome (CRPS)-Types I and II; Dystonia; Emphysema; Fibrous Dysplasia; General Anxiety Disorder; Hydrocephalus; Hydromyelia; Interstitial Cystitis; Lupus; Migraines; Myasthenia Gravis; Myoclonus; Nail-Patella Syndrome; Neurofibromatosis; Parkinson's Disease; Posterior Lateral Sclerosis(PLS); Post-Concussion Syndrome; Reflex Sympathetic Dystrophy (RSD); Residual Limb and Phantom Pain; Restless Leg Syndrome (RLS); Sjogren's Syndrome; Spinocerebellar Ataxia (SCA); Spinal Cord Injury and/or disease (including but not limited to Arachnoiditis); Syringomyelia; Tarlov Cysts; Tourette's Syndrome; and Traumatic Brain Injury. Section 7. Marijuana paraphernalia authorized. Notwithstanding any other provision of law, the following acts regarding marijuana paraphernalia shall not be an offense under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to The Uniform Controlled Substances Act §5-64-505: (a) Any person twenty-one (21) years of age or older may manufacture, possess, and purchase marijuana paraphernalia, or may sell marijuana paraphernalia, providing that marijuana paraphernalia being sold does not contain marijuana or products produced from marijuana, unless the seller of such paraphernalia has a marijuana license. (b) Any person who is issued a marijuana license may use marijuana paraphernalia for all purposes as defined in Section 3(h) (c) Any person twenty-one (21) years of age or older may use marijuana paraphernalia for the purpose of containing, or concealing recreational marijuana, or for ingesting, inhaling, or otherwise introducing recreational marijuana into his or her own body. Section 8. The Arkansas Marijuana Commission, Cultivation Facilities, and Dispensaries. The Arkansas Medical Marijuana Commission shall be known as the Arkansas Marijuana Commission and shall continue to approve and disapprove applicants for dispensaries and cultivation facility licenses pursuant to the Arkansas Medical Marijuana Amendment of 2016 providing the following on the effective date and hereafter: (a) all dispensaries licensed to cultivate, produce, distribute, and sell medical marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016 may also cultivate, produce, distribute, and sell recreational marijuana to any person who is twenty-one years of age or older. (b) all cultivation facilities licensed to cultivate, produce, distribute, and sell medical marijuana to dispensaries pursuant to the Arkansas Medical Marijuana Amendment of 2016 may also cultivate, produce, distribute, and sell recreational marijuana to licensed dispensaries. (c) The cost of the application fee for a dispensary license and yearly renewal fee shall not exceed one-thousand dollars ($1,000) per year. ( d) The cost of the application fee for a cultivation facility license and yearly renewal fee shall not exceed three-thousand dollars ($3,000) per year. (e) The commission shall not limit the number of dispensaries or cultivation facilities that can be licensed in the state repealing §8 subsection (h), (i), and U) , of the Arkansas Medical Marijuana Amendment of 2016. Section 9. Employers, driving, and minors. (a) Nothing in this amendment is intended to require an employer to permit or accommodate the cultivation, production, distribution, sale, possession, or use of recreational marijuana in the workplace or to affect the ability of employers to have policies restricting the use of recreational marijuana by employees. (b) Nothing in this amendment is intended to permit driving under the influence of marijuana. (c) Nothing in this amendment is intended to permit the transfer of recreational marijuana, with or without remuneration, to a person under the age of twenty-one (21 ). (d) Nothing in this amendment is intended to permit a person under the age of twenty-one (21) to cultivate, produce, sell, possess, or use recreational marijuana. (e) Nothing in this amendment is intended to permit the unauthorized cultivation, production, distribution, or sale, of any substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances Act. (f) Nothing in this amendment is intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity pursuant to the Arkansas Medical Marijuana Amendment of 2016. Section 10. Non-violent marijuana offenders and criminal record expungement. All persons currently serving incarceration, probation, or parole in this state, whose current and only conviction(s) to which they are now serving were due to violating state laws as they pertain to the cultivation, production, distribution, sale, and possession of marijuana, and or possession of marijuana paraphernalia, and whose violation(s) occurred prior to the effective date of this amendment shall be released, and all criminal records in this state shall be expunged of such convictions that occurred prior to the effective date of this amendment. Section 11. Taxation and distribution of proceeds from the sale of recreational marijuana and industrial hemp. (a) The sale of recreational marijuana is subject to the State Sales and Use Tax, and an additional five percent (5%) recreational marijuana excise tax shall be imposed upon the purchase. The sale of recreational marijuana shall not be subject to any local sales tax that exceeds two percent (2%). (b) The sale of industrial hemp cultivated in Arkansas is subject to the State Sales and Use Tax, and no additional tax shall be imposed upon the purchase. The sales tax that are currently imposed upon the sale of products produced from industrial hemp shall not be affected by this amendment. (c) The tax revenues received by the Department of Finance and Administration from the sale of recreational marijuana and industrial hemp under this amendment shall be distributed pursuant to §17 of the Arkansas Medical Marijuana Amendment of 2016. (d) The state shall not impose any tax upon the purchase of medical marijuana to patients. Section 12. Conflicting Laws. The provisions of this amendment are independent and severable, and, except where otherwise indicated in the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions. If any provision of this amendment, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this amendment shall not be affected and shall be given effect to the fullest extent possible.