Why did the Arkansas AG reject Jason D. Berry's 2017 ballot title for the Cannabis Hemp and Recreational Marijuana Amendment?

Plain-English summary

Jason D. Berry asked Attorney General Leslie Rutledge to certify the popular name and ballot title of a proposed Cannabis Hemp and Recreational Marijuana Amendment. Rutledge rejected it after identifying three problems that prevented an accurate title. She also noted that Mary L. Berry had submitted a nearly identical proposal. The one differing paragraph in Jason Berry's version was Section 11, headed "Marijuana licenses, plant tags, cannabis hemp licenses, and field tags."

The first issue concerned Section 3(i). It distinguished hemp from marijuana products by a 0.3% THC threshold but also swept in an item whose THC content "may contain a variation" above that threshold. Rutledge said a hemp cultivator could not tell which licensing and tag rules would apply to a mature plant. The second issue was Jason Berry's distinctive Section 11: it gave a date for the state to begin issuing licenses and tags that followed the proposal's effective date, and it left the consequences of delayed issuance unclear.

A further section headed "Federal Legislative Action" appeared to direct Arkansas's U.S. Senators and Representatives to support federal legislation. Rutledge said such a directive would likely be unconstitutional and a ballot title summarizing it would mislead voters. The opinion's heading calls this Section 12, while the following discussion calls it Section 11. The discussion of license and tag timing clearly concerns the separate Section 11 paragraph that distinguished Jason Berry's submission.

Currency note

This opinion was issued in 2017. Check current law before applying its ballot-title analysis to a new proposal.

Common questions

Q: How did Jason Berry's draft differ from Mary Berry's?
A: Rutledge identified one differing paragraph in Jason Berry's draft: Section 11 on marijuana and hemp licenses and tags. She warned that certifying substantively identical measures could confuse voters.

Q: Why did the license timetable prevent an accurate title?
A: The proposal was to take effect in November 2018, but Section 11 said the state would begin issuing licenses and tags in April 2019. Rutledge could not tell whether issuance was barred before then, which activities could proceed if the state missed the date, or when a later compliance period would begin.

Q: What was unclear about the THC threshold?
A: A provision classified products by whether they had more than 0.3% THC, but it also appeared to treat items whose content might vary above that line as marijuana products. Rutledge said the resulting obligations for a cultivator could not be summarized accurately.

Q: Did the AG declare the federal-legislation section invalid? A: She said a state constitutional direction to members of Congress would likely be unconstitutional, citing Gralike v. Cook. Her task here was to review the ballot title, and she concluded a title based on that language would mislead voters.

Q: Would fixing those three points guarantee certification?
A: No. Rutledge said the identified ambiguities were not necessarily all of them and that more could come to light when a revised proposal was reviewed.

Background and statutory framework

Under Ark. Code Ann. § 7-9-107, the AG reviews a proposed popular name and ballot title before petition circulation. Rutledge could not substitute a title while the proposal's regulatory effect and federal-legislation language remained uncertain. She invited revision and resubmission without deciding the proposal's merits.

Citations

• Ark. Code Ann. § 7-9-107
• Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999), affirmed, 531 U.S. 510 (2001)

Source

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

Original opinion text

Opinion No. 2017-014
February 10, 2017
Jason D. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Mr. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESUE 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. Please note that I received another request for review of a proposed recreational- marijuana amendment from Mary L. Berry. Ms. Berry's request arrived via email on January 27, 2017, and I have responded to it under separate cover. The return address Ms. Berry provided is the same as yours: P.O. Box 511, Summit, AR 72677. And a review of the amendment proposed by Ms. Berry demonstrates that it is identical to yours, but for one paragraph (labeled "Section 11. Marijuana licenses, plant tags, cannabis hemp licenses, and field tags") in your submission. I mention the near-total similarities between the proposed amendments because I have grave concerns about the potential for certifying two or more petitions that are identical in all substantive respects. Given my statutory duty to ensure that initiated petitions do not have ballot titles or popular names that are misleading to voters, I believe that certifying identical measures would unavoidably lead to confusion. If there are no differences in the measures themselves, their ballot titles and popular names would be no different-and I could not substitute a title 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Jason D. Berry, Sponsor Opinion No. 2017-014 Page2 for one measure that would distinguish it from the other, which would appear on the same ballot. Nor could I ensure that each of the identical ballot titles, as summaries of the language in the proposed amendments, effectively apprised the voters of potential changes to existing law. For these reasons, and because you and Ms. Berry appear to be in communication, I urge you to consolidate future submissions. Of course, I will review any proposed measures sent to my office for certification. But if I determine that a measure is substantively identical to a measure I have already reviewed, I may be constrained to respond to the later submission solely by reference to the earlier proposal. 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, if practicable, 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 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. 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. Jason D. Berry, Sponsor Opinion No. 2017-014 Page 3 The purpose of my review and certification is to ensure that the popular name and ballot title honestl~, intelligibly, and fairly set forth the purpose of the proposed amendment or act. 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 Hemp and Recreational Marijuana Amendment Ballot Title An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of recreational marijuana and cannabis hemp and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful 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 in to cannabis hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of cannabis hemp and products produced therefrom; providing that a business and anyone 21 years of age or older may obtain a cannabis hemp license permitting the business or person to cultivate cannabis hemp; authorizing recreational use of marijuana; providing that a business and anyone 21 years of age or older may obtain a marijuana license permitting the business or person to cultivate, produce, and sell marijuana and products produced 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Jason D. Berry, Sponsor Opinion No. 2017-014 Page 4 therefrom for recreational purposes; providing that a licensed person or business may cultivate up to 36 marijuana 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% recreational marijuana excise tax and a local sales tax of 2%; permitting any business that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any person 21 years of age or older; providing that the owner(s) of the business and any and all employees have a marijuana license, and that the recreational marijuana being sold in the form of edibles or drinkables (a)is [sic] not designed to appeal to children; (b) shall not exceed 10 milligrams of TCH per service, and ( c) labeling or packaging must provide product information; 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 recreational 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 proposal. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.6 4 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). 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 tenn "partisan coloring," see note 16 infra. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). Jason D. Berry, Sponsor Opinion No. 2017-014 Page 5 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 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 7 Becker v. Riviere, 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. II 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. 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)). Jason D. Berry, Sponsor Opinion No. 2017-014 Page 6 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 (1) 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. It is my opinion, based on the above precepts, that a number of additions or changes to your ballot title are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguities in the text of the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you may, if you wish, redesign the proposed measure and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposal.

1. Section 3(i) defines "products produced from marijuana" as
   products of the cannabis plant that "contain greater than [.3%
   THC]." "Products produced from cannabis hemp," on the other
   hand, "contain [.3% THC] or less." Section 3(i) also states that "any items that may contain a variation in [THC] content that would span 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. Jason D. Berry, Sponsor Opinion No. 2017-014 Page 7 above the three tenths of one percent ( .3 % ) threshold is to be considered a product produced from marijuana." (emphasis added) It is unclear which parts of, and which products derived from, a cannabis plant meet the definition of "product produced from marijuana," such that they would be subject to regulation for recreational purposes. Section 3( e) defines regulated "marijuana" as only that part of a cannabis plant that contains more than .3% THC "when harvested in its mature plant stage." A reasonable voter would probably conclude that any part of a mature cannabis plant containing less than .3% THC when harvested is not subject to recreational-use regulations. That interpretation is consistent with Section 3(a), which defines "cannabis hemp" as "any part of the cannabis plant" that when "harvested in its mature plant stage contains [.3% THC] or less." Based on these definitions, it appears that products produced from marijuana (containing more than .3% THC) are regulated as recreational, whereas products produced from cannabis hemp (containing .3% THC or less) fall under a separate regulatory scheme. This binary distinction based on THC content is reflected in the proposed ballot title, which states that the amendment "<livid[ es] cannabis in to cannabis hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC)." However, Section 3(i) adds to the definition of "products produced from marijuana" in such a way that confuses the significance of the products' THC content. A product produced from marijuana is also any item that "may contain a variation in [THC] content that would span above the three tenths of one percent (.3%) threshold." Presumably, items that "may contain" more than .3% THC are subject to the regulations for recreational use. I note that "item" is not a defined tenn in the proposed amendment. In any event, it would be unclear to a voter which marijuana products are to be regulated as recreational, and which products (such as cannabis hemp) are not. A cultivator harvesting a mature cannabis plant in order to produce hemp might believe the plant need not comply with the recreational-use regulations because it does not contain more than .3% THC. But the same cultivator might believe the mature cannabis plant is subject to recreational-use regulations as an "item whose components may contain a variation in [THC] content" that amounts to .3% or greater. Whether the proposed amendment would limit this cultivator, for example, to 36 plant tags at $6.00 per tag (as a grower of marijuana for recreational use) or whether the cultivator could obtain an unlimited number of
   $10.00 field tags (as a grower of cannabis hemp for non-recreational use) is uncertain. The ambiguities present in the definitions of "product produced from Jason D. Berry, Sponsor Opinion No. 2017-014 Page 8 marijuana" must be clarified in order for this aspect of the proposed amendment to be accurately summarized in a ballot title.
2. Section 11, entitled "Marijuana licenses, plant tags, cannabis
   hemp licenses, and field tags," states that: If the state fails to begin issuing such licenses and tags on April 19, 2019, the provisions of this amendment requiring them shall not be enforced, and the state shall not prohibit any person or business engaging in such activity without such a license and tag(s) until such licenses and tag(s) are made available by the state and thirty days is given in order for those engaged in such activity to comply. This language from Section 11 does not appear to be summarized in your proposed ballot title, and there are multiple ambiguities that prevent me from substituting ballot text that would effectively summarize the section for voters. First, Section 11 says that the State "shall begin issuing marijuana licenses, plant tags, cannabis hemp licenses, and field tags on April 19, 2019." Read literally, it is unclear if this section requires the State to withhold licenses and tags until April 19, 2019. It is somewhat difficult to reconcile that reading with Section 2 of the proposal, which provides that the amendment's effective date will be November 7, 2018. Second, it is unclear what you intend by providing that "the state shall not prohibit any person or business engag[ed] in such activity ... until such licenses and tag(s) are made available." It appears from Sections 4 and 5 of the proposed amendment that licenses and tags are required for the cultivation of cannabis hemp and recreational marijuana. Presumably, cultivation would be an "activity" the State could not regulate if it did not begin issuing licenses and tags on April 19, 2019. But it is uncertain whether other activities-purchase, possession, and use, for example-could be regulated by means of licenses or tags if the State fails to meet the April 19, 2019 deadline. It is also unclear how the State could make licenses and tags "available," such that those engaged in conduct requiring a license or tag would be afforded 30 days to ensure compliance. These ambiguities must be clarified in order for the regulatory timeline proposed in Section 11 to be accurately summarized in a ballot title.
3. Section 12, entitled "Federal Legislative Action," implicates
   Arkansas's Congressional delegation in a manner that appears to be beyond the scope of the Arkansas Constitution. I have serious reservations about whether this section could withstand a Jason D. Berry, Sponsor Opinion No. 2017-014 Page 9 constitutional challenge, and therefore doubt that a ballot title could fairly reflect the section's content so as not to mislead voters. Section 11 of the proposed amendment states that if Arkansas law "differs from federal law, it is to be the responsibility of the United States Senators and Representatives of Arkansas to actively pursue and support federal legislation" that would "secure any and all other rights and privileges that Arkansans would otherwise enjoy ... with no exclusion based solely on a citizen's participation in recreational marijuana and cannabis hemp production and use." First, it is entirely unclear what this section means by "state law differ[ing] from federal law." Second, and just as important, a ballot title summarizing the content of Section 11 would lead a reasonable voter to believe that an amendment to the Arkansas Constitution could direct United States Senators and Representatives to "actively pursue and support [certain] federal legislation." But an amendment purporting to supervise duly elected Congressional officials in this manner would likely be unconstitutional. See Gralike v. Cook, 191 F.3d 911, 915 (8th Cir. 1999), a.ff' d 5 31 U.S. 510 (2001) (striking an initiated amendment to the Missouri Constitution that "order[ed] members of Missouri's congressional delegation to use their authority to amend the United States Constitution to impose the term limits ... on Congressional service"). Because of these constitutional concerns, any ballot title premised on the language in Section 11 would be inherently misleading to voters. CONCLUSION The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of 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 Jason D. Berry, Sponsor Opinion No. 2017-014 Page 10 measure and ballot title.21 You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience. Sincerely,
   ~~/~
   LESLIE RUTLED~~
   Attorney General
   Enclosure
   21 Ark. Code Ann.§ 7-9-107(c). ARKANSAS CANNABIS HEMP AND RECREATIONAL MARIJUANA AMENDMENT OF 2018 (Popular Name) (Ballot Tltle) AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT, PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE OF RECREATIONAL MARIJUANA AND CANNABIS HEMP AND PRODUCTS PRODUCED THEREFROM MAY NOT BE PROHIBITED UNDER STATE LAW, BUT SHALL BE REGULATED UNDER STATE LAW; RECOGNIZING THAT SUCH ACTIVITIES REMAIN UNLAWFUL UNDER FEDERAL LAW; PROVIDING FOR T~E 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 IN TQ CANNABIS HEMP (CONTAINING 0.3% OR LESS THC) AND MARIJUANA (CONTAINING MORE THAN 0.3% THC); REGULATING THE CULTIVATION, PRODUCTION, DISTRIBUTION AND THE SALE OF CANNABIS HEMP AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT A BUSINESS AND ANYONE 21 YEARS OF AGE OR OLDER MAY OBTAIN A CANNABIS HEMP LICENSE PERMITTING THE BUSINESS OR PERSON TO CULTIVATE CANNABIS HEMP; AUTHORIZING RECREATIONAL USE OF MARIJUANA; PROVIDING THAT A BUSINESS AND ANYONE 21 YEARS OF AGE OR OLDER MAY OBTAIN A MARIJUANA LICENSE PERMITTING THE BUSINESS OR PERSON TO CULTIVATE, PRODUCE, AND SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES; PROVIDING THAT A LICENSED PERSON OR BUSINESS MAY CULTIVATE UP TO 36 MARIJUANA 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% RECREATIONAL MARIJUANA EXCISE TAX AND A LOCAL SALES TAX OF 2%; PERMITTING ANY BUSINESS THAT IS 1500 FEET AWAY OR MORE FROM A PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL RECREATIONAL MARIJUANA TO ANY PERSON 21 YEARS OF AGE OR OLDER; PROVIDING THAT THE OWNER(S) OF THE BUSINESS AND ANY AND ALL EMPLOYEES HAVE A MARIJUANA LICENSE, AND THAT THE RECREATIONAL MARIJUANA BEING SOLD IN THE FORM OF EDIBLES OR DRINKABLES (A)IS NOT DESIGNED TO APPEAL TO CHILDREN; (B) SHALL NOT EXCEED 10 MILLIGRAMS OF THC PER SERVING, AND (C) LABELING OR PACKAGING MUST PROVIDE PRODUCT INFORMATION; 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 RECREATIONAL 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 Hemp and Recreational Marijuana Amendment of 2018. Section 2. Effective Date. Effective on and after November 07, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) as it pertains to cannabis hemp and recreational marijuana and the products produced therefrom shall be regulated pursuant to the provision of this amendment and made lflwful in: every geographic area of every county of this state under Arkansas law. Section 3. Definitions. The following terms are defined for the purposes of this amendment: (a) "Cannabis hemp" means any part of the cannabis plant (genus Cannabis), llvlng or not, and when harvested in its mature plant stage contains three tenths of one percent (0.3%) or less, by dry weight, Delta-9-tetrahydrocannabinol (A'THC), (b) "Cannabis hemp field tag or field tag" means a label issued by the state that a cultivator attaches to any post or fencing where cannabis hemp is being grown, and is used for identifying ten (10) acres or less of cannapis hemp plants. Each field tag shall display the cannabis hemp license account number and an expiration date that corresponds with the cultivator's cannabis hemp license. Each field tag may be bar-coded or embedded with radio frequency identification (RFID) smart chip. . (c) "Cannabis hemp license" means a registration card issued by the state to a business or person who Is a resident of the state and is twenty-one (21) years of age or older to lawfully cultivate, produce, and sell cannabis hemp and products produced from cannabis hemp that Is cultivated in this state. Each license shall display a license account number, an expiration date, and the photo, name or business name, date of birth, and current address of the holder or business. (d) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (A'THC) content of the operato(s blood exceeds thirteen micrograms per liter (13µg/l). (e) "Marijuana" means any part of the cannabis plant (genus Cannabis), living or not, and when harvested in its mature plant stage contains greater than three tenths of one percent (0.3%), by dry weight, Delta-9-tetrahydrocannabinol (A9THC). (f) "Marijuana license" means a registration card issued by the state to a business or 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 pmducts produced from marijuana for recreational purposes. Each license shall display a license account nlilmber, an expiration date, and the photo, name or business name, date of birth, and current address of the holder or business. (g) "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 marijuana, or for ingesting, inhaling or otherwise introd~cing recreational marijuana into the human body. (h) "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. (i) "Products produced" means items and substances manufactured from the cannabis plant (genus Cannabis}, whereas products produced from marijuana contain greater than thr~e tenths of one percent (0.3%) Delta-9-tetrahydrocannabinol (d'THC) and products produced from CC:lnnabis hemp contain three tenths of one percent (0.3%) or less A"THC. Any item whose components may ·contain a variation in d9THC content that would span above the three tenths of one percent (0.3%) threshold is to be considered a product produced from marijuana. (j) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an intoxicant. (k)"Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational marijuana. (I) "Remuneration" means an act in which money is being paid to purchase recreational marijuana. S¢ction 4. The regulation of cannabis hemp. The cultivation, production, distribution, sale, possession, and use of cannabis hemp and products produced from cannabis 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 a cannabis 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 business or 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 for violating the provisions pursuant to this amendment. (b) The cost of a cannabis hemp field tag that shall be issued and required by the state to regulate the cultivation of cannabis hemp shall not exceed ten dollars ($10.00) per field tag per year, and any business or person with a cannabis hemp license as defined in Section 3(c) may obtain such field tags, and there shall be no limit to the number of field tags allowed per licensed business or person per year, (c) Any person or business issued an cannabis hemp license and field tag(s) may cultivate cannabis hemp on property he or she owns, or with the consent of the person(s) who owns the property. (d) Any person who violates the provisions pursuant to this section the followlng penalties may be imposed: (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 a cannabis 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 a cannabis 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 a cannabis hemp license. Section 5. The regulation of recreational marijuana. T~e cultivation, production, distribution, sale, possession, and use of marijuana and products produced from m·arijuana for recreational purposes 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, bl\lt 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 business or 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 for violating the provision pursuant to this amendment. (b) The cost of a marijuana plant tag that shall be issued and required by the state to regulate the cultivation of recreational marijuana produced in this state, shall not exceed six dollars ($6.00) per plant tag, and any person or business who has a marijuana license as defined in Section 3(f) shall qualify to obtain such tags, and there shall be a limit of thirty-six (36) plant tags allowed per year per llcensed person or business. Marijuana plant tags may be purchased in any quantity, but not to exceed thirty-six (36) tags per licensed person or business 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 or business who has a marijuana license, but the quantity of the products produced from marijuana shall not be limited. (d) Any person or business 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) Any person who is twenty-one (21) years of age or older may purchase, possess, and .use recreational m:arijuana, and may distribute recreational marijuana without remuneration to another person who is twenty-one (21) years of age or older. (f) Any business with a marijuana license whose owner(s) and employee(s) all have a marijuana license as defined in section 3(f) may sell recreational marijuana to any person who is twenty-one years of age or older in that place of business providing: (1) All buyers of recreational marijuana must first show proof of age with a valid driver's license or valid state identification ca.rd prior to the purchase. (2) The business where recreational mariju<!na is being sold is not located within one thousand five hundred feet (1,500') of a public or private school, church, or daycare center, and; (3) All recreational marijuana being sold is designed, packaged, and labeled pursuant to section 6 of this amendment. (g) Any person who violates the provision of this section the following penalties may be imposed: (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 thirty 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 (90) days in jail, and a permanent revocation of a marijuana license. Section 6. Recreational marijuana product design, serving size, labeling and packaging. (a) All edible and drinkable products produced. from marijuana that are sold for recreational purp.oses shall; (1) Shall not be designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain marijuana. (2) Shall be produced anci sold with a standardized dosage not to exceed ten (10) milligrams of delta-9-tetrahydrocannablnol (.69THC) per serving. (3) Shall be delineated or scored into standardized serving sizes if the product contains more than one serving and Is ih solid form. (4) Shall be homogenized to ensure uniform disbursement of delta-9-tetrahydrocannabinol (.69THC) throughout the product. (5) Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the potential effects of the product, and directions as to how to consume the product. (b) All smokable and vaporizable products produced from marijuana that are sold for recreational purposes shall; (1) Shall provide information on the packaging to enable the informed consumption of such product, including the delta-9-tetrahydrocannabinol (.69THC) content, potential effects of the product, and directions as to how to consume the product. S~ctlon 7. Marijuana paraphernalia authorized. Notwithstanding any other provision of law, the following acts regarding marijuana paraphernalia shall nqt 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 business or person twenty-one (21) years of age or older may manufacb,ire, possess, and purchase m"arijuana paraphernalia, or may sell marijuana paraphernalia to another business or person who is twenty-one years of age or older, providing that the marijuana paraphernalia being sold does not contain recreational marijuana, unless the seller of such paraphernalia has a marijuana license. Section 8. 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. Section 9. Non-violent marijuana offenders and crimlnal 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 vlolation(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 priorto the effective date of this amendment. Section 10. Taxation and distribution of proceeds from the sale of recreational marijuana and cannabis hemp. (a) The following taxes shall be imposed upon the purchase of re.creational marijuana sold in Arkansas: (1) The Arkansas State Sales and Use Tax, (2) a five percent (5%) recreational marijuana excise tax, and (3) a two percent (2%) loceil sales tax. (b) The following taxes shall be imposed upon the purchase of cannabis hemp cultivated and sold In Arkansas: (1) The Arkansas State Sales and Use Tax (o) The sales tax that are currently imposed upon the sale of products produced from cannabis hemp shall not be affected by this amendment. (d) The distribution of tax revenues received by the Department of Finance and Administration from the sale of re.creational marijuana and cannabis hemp under this amendment may be determined by the general assembly. Section 11. Marijuana licenses, plant tags, cannabis hemp licenses, and field tags The state shall begin issuing marijuana licenses, plant tags, cannabis hemp licenses, and field tags on April 19th, 2019. If the state fails to begin Issuing such licenses ancl tags on April 19th, 2019 the provisions of this amendment requiring them shall not be enforced, and the state shall not prohibit any person or business engaging in such activity without such a license and tag(s) until such licenses and tag(s) are made available by the state and thirty days is given in order for those engageci in s.uch activity. to comply. Section 12. Federal Legislative Action. Based on the majority vote allowing this amendment to pass, it is therefore attached that when state law differs from federal law it is to be the responsibill.ty of the United States Senators and Representative~ of Arkansas to actively pursue and support federal legislation that will assure the equal protection of our citizens from federal prosecution and asset forfeitures, and secure any and all other rights and privileges that Arkansans would otherwise enjoy such as; insurance coverage, banking privileges, grants, loans, assistance, and the constitutional right to keep and bear arms with no exclusion based solely on a citizen's pcirticipation in recreational marijuana and cannabis hemp production and use. Section 13. Conflicting Laws. The provisions of this Amendment are hereby declared to be severable and self-executing, and except where otherwise indicated in this Amendment, shall supersede all conflicting state and local laws, charters, regulations, and any and all other provisions in conflict with this Amendment. If any provision of this Amendment, or the application of such provision to any person or circumstance, Is declared invalid by any court for any reason, such declaration shall not affect the validity of the remaining portions of this Amendment.