Why did the Arkansas AG reject Jason D. Berry's 2017 ballot title for the Cannabis Hemp and Recreational Marijuana Amendment?
Apply this to your situation
This page answers the general question as of 2017. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Jason D. Berry of Summit, Arkansas, submitted a proposed constitutional amendment titled the "Arkansas Cannabis Hemp and Recreational Marijuana Amendment" for AG certification on January 31, 2017. Mary L. Berry submitted a near-identical proposal a few days later (Op. Att'y Gen. 2017-010). The two submissions came from the same Summit, AR P.O. Box 511 address and differed by one paragraph: Mr. Berry's draft contained a Section 11 ("Marijuana licenses, plant tags, cannabis hemp licenses, and field tags") not present in Ms. Berry's version.
AG Leslie Rutledge rejected Mr. Berry's submission for three specific drafting defects. The opinion explicitly cross-referenced the Mary Berry proposal and warned that certifying two near-identical petitions on one ballot would inevitably mislead voters.
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 three specific defects the AG identified
Defect 1: Section 3(i)'s THC-content ambiguity. Same defect as in the Mary Berry submission. Section 3(i) defined "products produced from marijuana" as items containing more than .3% THC, and "products produced from cannabis hemp" as items containing .3% THC or less. The kicker: "any item whose components may contain a variation in [THC] content that would span above the three tenths of one percent (.3%) threshold is to be considered a product produced from marijuana."
The result is that a hemp cultivator harvesting a mature cannabis plant could not tell whether the plant fell under the hemp regime (unlimited $10 field tags) or the marijuana regime (36 plant tags at $6 each). The amendment's licensing scheme depended on which side the plant fell on, and a ballot title cannot honestly summarize a regulatory regime built on an unclear definition.
Defect 2: Section 11's license-and-tag start date confusion. This is the section unique to Mr. Berry's submission. Section 11 said:
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.
The AG flagged multiple ambiguities:
- The effective date (Section 2) was November 7, 2018, but Section 11 said licenses and tags would be issued starting April 19, 2019. It was unclear whether the State must withhold licenses and tags until April 19, 2019, or whether activity was lawful in the gap with no licensing at all.
- The phrase "engaging in such activity" was unclear: cultivation needed licenses, but did purchase, possession, and use also need them? If the State missed the April 19 deadline, what activities could be regulated?
- The phrase "make licenses and tags 'available'" was undefined, making the 30-day compliance window untriggerable.
Defect 3: Section 12's directive to the Congressional delegation. Same defect as the Mary Berry submission's Section 11. Section 12 said it was "the responsibility of the United States Senators and Representatives of Arkansas to actively pursue and support federal legislation" to secure rights for citizens engaged in marijuana activity. The AG cited Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999), aff'd, 531 U.S. 510 (2001), which struck down a Missouri amendment that purported to direct Missouri's Congressional delegation to pursue federal term-limits legislation. Arkansas cannot supervise its members of Congress through a state constitutional amendment, and a ballot title premised on Section 12 would be inherently misleading.
(The opinion contains a typographical mismatch: it labels the directive section "Section 12" in the issue heading but refers to "Section 11" in the discussion. Substantively, the federal-directive language is the additional content distinguishing Mr. Berry's draft from Ms. Berry's.)
What the proposal would have done
The substantive features mirrored the contemporaneous Mary Berry submission:
- Adult-use legalization at age 21
- $30 marijuana license; 36-plant cap per cultivator; $6 plant tags
- $30 cannabis hemp license; unlimited $10 field tags
- 1,500-foot setback from public/private schools, churches, and daycare centers
- Edible standards; 10mg THC per serving; homogenized; labeled
- Existing sales tax + 5% recreational excise tax + 2% local sales tax
- Driving-under-influence threshold of 13 micrograms THC per liter of blood
- Release and expungement for persons whose only convictions were marijuana-related
- Carve-outs for employer policies and DUI prohibition
Plus the unique Section 11 license-and-tag timing language and Section 12 federal directive.
Common questions
Why is the same family submitting effectively the same proposal twice?
The opinion does not say. The AG flagged the near-identity, urged consolidation, and warned that "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."
Why did the AG go through this submission's defects in detail anyway?
Because Mr. Berry's draft contained Section 11 (the license-and-tag start-date language) that was not in the Mary Berry version. That section was new content requiring its own analysis.
Could Mr. Berry just delete Sections 11 and 12 and resubmit?
That would address the timing and federal-directive defects but not the Section 3(i) THC ambiguity, which would still need separate fix. Plus, deleting Section 11 might leave the licensing regime without an implementation timetable at all, creating its own ambiguity.
Is "Mary L. Berry" related to "Jason D. Berry"?
The opinion does not say explicitly, but it notes both submissions came from the same Summit, AR P.O. Box 511 address. The AG urged the sponsors to "consolidate future submissions."
What is Gralike v. Cook?
A 1999 Eighth Circuit decision (affirmed unanimously by the U.S. Supreme Court in 2001) that struck down a Missouri ballot measure ordering Missouri's Congressional delegation to vote for a federal term-limits amendment. The Court held that a state cannot bind its federal officeholders to state-mandated political positions. Any Arkansas amendment that tries to direct its members of Congress runs into the same problem.
Background and statutory framework
Ark. Code Ann. § 7-9-107 implements Article 5, § 1 of the Arkansas Constitution (the initiative/referendum provision via Amendment 7). The AG can certify, substitute, or reject. Bailey v. McCuen, 318 Ark. 277 (1994), and Roberts v. Priest, 341 Ark. 813 (2000), are the foundational Arkansas Supreme Court standards for ballot title sufficiency.
The five-minute voting-booth limit in Ark. Code Ann. § 7-5-309 forces brevity. Roberts v. Priest prevents the AG from approving a measure when "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Gralike v. Cook limits state-level directives to federal officeholders.
Citations
- Ark. Code Ann. § 7-9-107 (AG ballot-title certification authority)
- Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)
- 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)
- Lange v. Martin, 2016 Ark. 337
- Wilson v. Martin, 2016 Ark. 334
- Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999), aff'd 531 U.S. 510 (2001)
- Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
- Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
- Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
- Op. Att'y Gen. 2017-010 (Mary Berry contemporaneous submission)
- Op. Att'y Gen. 2017-011 (Romane contemporaneous submission)
- Op. Att'y Gen. 2017-012 (Morris contemporaneous submission)
Source
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.
- 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. - 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. - 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.
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