Why did the Arkansas AG reject Mary L. Berry's December 2016 ballot title for a recreational and medical marijuana amendment that overlapped with the just-approved AMMA?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment titled the "Arkansas Cannabis Hemp and Recreational Marijuana Amendment" in December 2016. Arkansas voters had approved Amendment 98 (the Medical Marijuana Amendment of 2016, AMMA) at the November 2016 general election just weeks earlier. Berry's amendment addressed both medical and recreational marijuana, with significant overlap and likely conflict with the AMMA.

AG Leslie Rutledge rejected the submission because the proposed ballot title made no meaningful effort to explain how the new amendment would change the AMMA. Under Bradley v. Hall and Dust v. Riviere, a ballot title must inform voters of the "changes in law" they are voting on. A title that hides the AMMA interaction does not let voters make an informed choice.

This was the first AG rejection in the Berry / Arkansas True Grass series. Successive submissions (Op. Att'y Gen. 2017-006, 2017-010, 2017-014, etc.) were rejected for additional defects on top of variations of this same problem.

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.

Arkansas voters subsequently rejected a recreational-marijuana initiative (Issue 4) at the 2022 general election. Verify current Arkansas marijuana law before relying on any aspect of this 2017 analysis.

The "changes in law" rule from Bradley v. Hall

The Arkansas Supreme Court has been emphatic about the duty to describe legal change. From Bradley v. Hall, 220 Ark. 925 (1952):

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 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.

Dust v. Riviere, 277 Ark. 1 (1982), reinforced the rule with even stronger language about the voter's right to "make an intelligent choice, fully aware of the consequences of their vote."

May v. Daniels, 359 Ark. 100 (2004), softened slightly: a title is "not insufficient merely because it fails to reflect the current state of the law." But it must give voters a clear understanding of the "extent and import" of the proposal.

Why Berry's title failed the test

Berry's amendment overlapped with the AMMA in at least two specific ways:

1. Section 2 said the cannabis plant "shall be regulated pursuant to the provisions of this amendment." That language did not say how it interacts with the AMMA's separate regulatory scheme for medical use under § 3 (qualifying patients, designated caregivers, dispensaries) and § 2(11) (definition of "medical use").

2. Section 3(g) allowed marijuana license holders to cultivate, produce, and sell marijuana "for recreational and medical purposes." That created an unanswered question: was Berry's amendment creating an entirely separate medical licensing track running parallel to the AMMA, supplanting the AMMA, or partially merging with it?

The AMMA itself contains provisions limiting (and in some respects preventing) amendments by the General Assembly. A new constitutional amendment that interacts with the AMMA needs to address that interaction, but Berry's ballot title was silent.

Why the AG would not substitute her own ballot title

The AG noted that her substitute-and-certify power has limits. Under Op. Att'y Gen. 2012-033 and prior opinions, the AG can modify a proposed ballot title to make it more accurate, but she cannot draft an "independent product." When the proposal's effects on existing law are fundamentally unclear, the AG cannot fill the gap by guessing what the sponsor meant.

The AG also declined to walk through the proposal's other ambiguities, citing prior Berry rejections (Op. Att'y Gen. 2016-122, etc.). Doing so would amount to acting as the proposal's drafter, which exceeds the AG's role under § 7-9-107.

What "AMMA-aware" drafting would look like

For a future ballot title to satisfy Bradley v. Hall in this context, it would need to:

• Identify the AMMA by name and clarify whether the new amendment supersedes, supplements, or repeals it.
• Address the AMMA's specific protections (qualifying patients, designated caregivers, dispensaries) and explain the new amendment's effect on those protections.
• Address the AMMA's limits on legislative amendment and explain whether the new amendment changes those limits.
• Distinguish the new amendment's medical-use provisions from the AMMA's medical-use provisions.

Common questions

Why did the timing matter so much?
Because Berry submitted just weeks after voters approved the AMMA at the November 2016 election. A new amendment proposing to alter or replace the AMMA right after voters approved it is exactly the kind of change voters want to understand clearly. The AG was right to insist the ballot title spell out the consequences.

Could a sponsor avoid the AMMA-interaction analysis by writing only a recreational amendment?
Possibly, but the substantive overlap is hard to avoid. Anyone licensed to cultivate marijuana for recreational use is also potentially in the medical-use space; ballot title silence on that overlap is exactly the Bradley v. Hall problem.

What is "changes in law" in practice?
The ballot title must summarize what becomes legal that wasn't, what becomes illegal that wasn't, what new institutions are created, what taxes are imposed or limited, and how existing law (including other constitutional provisions) is affected.

Did Berry ever fix this?
The series of subsequent rejections (Op. Att'y Gen. 2017-006, 2017-010, 2017-014, 2017-127, 2017-135, 2018-005, 2018-016) suggest the answer is no. None of the True Grass amendments ever cleared certification.

Is Bradley v. Hall still good law?
Yes. Arkansas Supreme Court ballot-title decisions continue to apply Bradley v. Hall as the canonical "changes in law" standard. May v. Daniels and Roberts v. Priest refined it but did not displace it.

Background and statutory framework

Ark. Code Ann. § 7-9-107 is the AG ballot-title certification authority. The Bradley v. Hall doctrine sits at the heart of ballot-title sufficiency review. Roberts v. Priest, 341 Ark. 813, prevents approval where ambiguities in the proposal itself prevent honest summary. Dust v. Riviere, 277 Ark. 1, emphasizes the voter's right to informed decision-making, especially for constitutional amendments.

Amendment 98 (AMMA) was approved at the November 2016 general election. Section 2(11) defines "medical use." Section 3 sets out protections for qualifying patients and designated caregivers. The AMMA also contains provisions limiting legislative amendment, which any subsequent constitutional amendment that touches the AMMA's territory must address.

Citations

• Ark. Code Ann. § 7-9-107 (AG ballot-title certification authority)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)
• Amendment 98 to the Arkansas Constitution (AMMA), §§ 2(11), 3 (medical use protections)
• Bradley v. Hall, 220 Ark. 925, 251 S.W.2d 470 (1952)
• Dust v. Riviere, 277 Ark. 1, 638 S.W.2d 663 (1982)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Op. Att'y Gen. 2012-033 (limits on substitute-and-certify power)
• Op. Att'y Gen. 2016-122 (predecessor Berry rejection noting AMMA-interaction ambiguity)
• Op. Att'y Gen. 2017-006 (subsequent Berry rejection)
• Op. Att'y Gen. 2017-010 (subsequent Berry rejection)

Source

• Landing page: 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.