Why did the Arkansas Attorney General reject Mary Berry's recreational marijuana ballot title?
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
Mary Lou Berry submitted a popular name and ballot title for the proposed "Arkansas Cannabis Hemp and Recreational Marijuana Amendment of 2018," which would have legalized recreational cannabis cultivation, sale, and use; created licensing systems for both cannabis hemp and recreational marijuana; mandated expungement of certain marijuana-related convictions; and imposed a 5% recreational excise tax plus a 2% local sales tax.
Attorney General Leslie Rutledge rejected the submission. Unlike many ballot-title rejections that focus on length or partisan framing, this one identified five specific drafting ambiguities in the underlying amendment that made fair summarization impossible:
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Field-tag acreage math. Section 3(b) defined a field tag as a label "where ten acres or less of cannabis hemp is being grown," but immediately added that field tags were "required to be posted for every ten acres of cannabis hemp grown." A reader could not tell whether tags were required only at 10 acres or below, or whether they were required at every 10-acre increment beyond that.
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Hypothetical examples. The text gave example tag counts: 1 tag for under 1 acre but not more than 10; 2 tags for greater than 10 but not more than 20; 5 tags for greater than 40 but not more than 50; 10 tags for greater than 90 but not more than 100. Two problems: the first hypothetical conflated "less than 1 acre" with "not more than 10 acres" so the math was unclear in the 1-10 range, and the missing entries (20-40 acres, 50-90 acres) left it unclear whether the four examples were exhaustive.
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Cultivation consent (Section 5(d)). The text required licensees cultivating on someone else's land to have "the consent of the persons(s) who own the property." If a corporation owned the land instead of a person, the text was silent on whether business consent was required.
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Packaging scope (Section 5(f)(3)). The text required all recreational marijuana "being sold" to follow the design and labeling rules in Section 6. Whether those rules also applied to marijuana distributed without remuneration (Section 5(e) allowed distribution without payment) was unclear.
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Expungement scope (Section 9). The amendment ordered expungement of "all criminal records . . . of such convictions that occurred prior to the effective date of this amendment." The AG read two plausible interpretations: only convictions whose sentence was being served at the effective date, or every prior marijuana conviction in state history. Voters had no way to know which the amendment meant.
The AG's bottom line was that ballot-title certification cannot fix textual ambiguity in the underlying amendment. She told Berry to redesign the proposed measure to resolve those ambiguities, then resubmit for re-review.
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.
Common questions
Q: How is this rejection different from a length-and-complexity rejection?
A: Most ballot-title rejections in this era focused on length or insufficient summarization (the Walker v. Priest 994-word ceiling, etc.). This one focused on substantive ambiguities in the proposed text. The AG could not write a fair summary because she did not know what the proposal meant. That is a structurally different problem: even a perfect drafter could not write a perfect title for a contradictory proposal.
Q: Why does ambiguity in the underlying text bar certification?
A: Roberts v. Priest established that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." If the AG cannot tell what the proposal does (is it 1 tag per 10 acres, or 1 tag for the first 10 acres only?), she cannot describe what the proposal does to voters. The voters would then make decisions on ambiguous rules.
Q: Does this opinion bar legalization of recreational marijuana?
A: No. The AG was clear: she takes no position on the merits. She rejected this particular drafting attempt. A cleaner draft of the same policy idea, with the five flagged ambiguities resolved, would receive fresh review.
Q: What did Berry's amendment actually propose?
A: Highlights from the text: dividing cannabis into "cannabis hemp" (≤0.3% THC) and "marijuana" (>0.3% THC); allowing any person 21+ or business to obtain a $30/year cannabis hemp license; allowing the same to obtain a $30/year marijuana license to cultivate, produce, and sell; capping cultivation at 36 marijuana plants per license-holder per year; requiring 1500-foot setbacks from schools, churches, and daycares; capping edibles at 10 mg THC per serving; and imposing a 5% recreational marijuana excise tax plus a 2% local sales tax on top of the existing state sales tax. The amendment also created a fallback rule: if the state failed to begin issuing licenses by April 19, 2019, the licensing requirement would not be enforced until licenses were available.
Q: Did Berry submit again?
A: Other AG opinions in the 2017 cluster show Berry submitted multiple cannabis-amendment drafts, all of which were rejected. The pattern is similar: drafting issues in the underlying text, not partisan or length issues with the title alone.
Q: How specific does an AG ambiguity finding have to be?
A: This opinion is a useful template. The AG identified five concrete passages, quoted them, and explained the ambiguity in each. Concrete identification matters, because the sponsor needs to know exactly what to fix in a redraft.
Background and statutory framework
Arkansas's medical-marijuana program had been in place since the AMMA passed in 2016, but recreational legalization was not on the table at the state level. Several initiative campaigns in 2017-2018 tried to put recreational on the ballot. None of them succeeded in clearing both AG certification and Supreme Court review. The reasons varied: drafting flaws (this opinion), partisan framing in the title, length, and external legal challenges to the petition itself.
The opinion is a useful artifact for anyone drafting a ballot initiative: read it as a checklist of the kinds of mistakes that get measures rejected before they ever circulate. The five issues here are mundane drafting bugs that any state legislature would catch through its bill-drafting office. Initiative sponsors who do not have access to that level of legislative drafting support are at a structural disadvantage.
Citations
- Ark. Code Ann. § 7-9-107 (Supp. 2015)
- Ark. Code Ann. § 7-5-309
- Ark. Code Ann. § 5-64-505 (Uniform Controlled Substances Act)
- Roberts v. Priest, 341 Ark. 813 (2000)
- Bailey v. McCuen, 318 Ark. 277 (1994)
- Lange v. Martin, 2016 Ark. 337
- Wilson v. Martin, 2016 Ark. 334
Source
Original opinion text
Opinion No. 2017-030
March 20, 2017
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code
Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed
initiated measure.
At the outset, I wish to make clear to you that the decision to certify or reject
a popular name and ballot title is in no way a reflection of my view of the
merits of a particular proposal. I am not authorized to, and do not, consider
the merits of the measure when making my determination to certify or reject
a popular name and ballot title.
The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify
the popular name and ballot title of all proposed initiative and referendum acts or
amendments before the petitions are circulated for signature. The law provides that
the Attorney General may, 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
323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 2
law,"1 this office will not require that a measure's proponents acknowledge in the
ballot title any possible constitutional infirmities.2 Consequently, this review has
been limited primarily to a determination, pursuant to the guidelines that have
been set forth by the Arkansas Supreme Court, discussed below, of whether the
popular name and ballot title you have submitted accurately and impartially
summarize the provisions of your proposal.
The purpose of my review and certification is to ensure that the popular name and
ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed
amendment or act. 3
REQUEST
You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of
the following popular name and ballot title for a proposed constitutional
amendment:
Popular Name
Arkansas Cannabis Hemp
and Recreational Marijuana Amendment of 2018
Ballot Title
An amendment to the Arkansas Constitution concernmg 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;
1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326
Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. Mccuen, 310 Ark. 654, 841 S.W.2d 139
(1992).
2 As part of my review, however, I may address constitutional concerns for consideration by the
measure's proponents.
3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 3
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, possession of marijuana, marijuana paraphernalia,
and the unlawful use of a communication device as it pertains to the
sale of marijuana; and the expungement of records relating to such
conviction(s); dividing cannabis in to [sic] 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 have cultivating [sic] 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 with a marijuana
license that is 1500 feet away or more from a public or private
school, church, or daycare may sell recreational marijuana to any
business with a marijuana license, or 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)shall
[sic] not be 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; providing that if the State fails to begin issuing cannabis
hemp licenses, field tags, marijuana licenses, and plant tags by April Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page4
19th, 2019 such licenses and tags shall not be required to cultivate,
produce, and sale [sic] cannabis hemp and or recreational marijuana
until such licenses and tags are issued by the State and 30 days is
given for those engaged in such activity to obtain such licenses and
tags for the activity in which they are engaged.
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
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
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 term "partisan coloring," see
note 16 infra.
6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
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, 500 S.W.3d 154, at n. 2.
9 Id. at 9, 500 S.W.3d at 159.
10 Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
11 Id., 500 S.W.3d at 167. Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 5
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
impartial, 17 and it must conve~ an intelligible idea of the scope and significance of
a proposed change in the law. 8
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
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, 318 Ark. 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)).
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). Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 6
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(b) of your proposed amendment
defines a "cannabis hemp field tag or field tag" as a
state-issued label that must be "attache[ d] to any post
or fencing where ten acres or less of cannabis hemp is
being grown, and a field tag is required to be posted
for every ten acres of cannabis hemp grown, with a
limit of ten (10) tags allowed per licensed business or
person per year."
I cannot reconcile an apparent contradiction between the ten-acre limitation on
cannabis-hemp field tags and the requirement that field tags "be posted for every
ten acres of cannabis hemp grown." On the one hand, a reasonable voter might
conclude that a field tag is only necessary where "ten acres or less of cannabis
hemp" are cultivated. But the clause that immediately follows the quoted
language in Section 3(b) states that field tags are "required ... every ten acres."
Therefore, a reasonable voter might conclude that field tags are necessary where
ten acres or more of cannabis hemp are cultivated. Until this ambiguity is
clarified, I cannot summarize the proposed amendment in a ballot title so as to
give voters a fair understanding of the field-tag requirements for cannabis hemp.
zo Id Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 7 - Section 3(b) also provides the following set of
examples: - less than ( <) 1 acre but not more than 10 acres
will require 1 field tag, - greater than (>) 10 acres but not more than 20
acres will require 2 field tags, - greater than (>) 40 acres but not more than 50
acres will require 5 field tags, and - greater than (>) 90 acres but not more than 100
acres will require 10 field tags.
This part of the text raises at least two additional ambiguities. First, the initial
hypothetical appears to contain an internal error that is not amenable to summary
in a ballot title. This hypothetical states that one field tag is required for "less than
( <) 1 acre" of cannabis hemp; at the same time, the hypothetical states that one
field tag is required for "not more than 10 acres" of cannabis hemp. A reasonable
voter would be unsure of the number of field tags necessary for a licensee
cultivating greater than one, but less than ten, acres of cannabis hemp. Second, it
is unclear if the four hypotheticals are intended as an exhaustive list of field-tag
limitations with respect to acreage. For this reason, a reasonable voter would
question how, or if, the field-tag requirement applies to acreages not expressly
mentioned. The ambiguities caused by the examples in Section 3(b) must be
clarified before I can fairly summarize the field-tag requirements in a ballot title. - Section 5( d) states that any "person or business
who is issued a marijuana license and plant tag(s) may
cultivate marijuana . . . with the consent of the
persons(s) who own the property."
There is an ambiguity caused by, on the one hand, legalizing the cultivation of
marijuana for licensed persons and businesses, while expressly stating that only
"person(s)" need consent to cultivation of marijuana if the licensee does not own
the property where the marijuana is grown. If a business, and not a person, owned
the property in question, it is unclear if that business would need to consent to a
third-party licensee cultivating marijuana on the property. This ambiguity must be
resolved in order to accurately summarize the proposed amendment's
requirements for marijuana cultivation. Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 8 - Section 5(f)(3) states that all recreational
marijuana "being sold" must be "designed, packaged,
and labeled pursuant to section 6 of this amendment."
It is unclear if the design/packaging/labeling requirements for recreational
marijuana apply strictly to marijuana "sold" by a licensee, or if these requirements
apply as well to marijuana distributed without remuneration. The manner in
which recreational marijuana is sold and distributed is crucial to a fair summary of
the amendment in a ballot title. This ambiguity must be clarified before I can
certify a title that accurately describes the amendment's requirements for design,
packaging, and labeling. - Section 9 provides that "all criminal records in
this state shall be expunged of such [marijuana-related]
convictions that occurred prior to the effective date of
this amendment."
The extent of the expungement requirement in Section 9 is unclear. Specifically, a
reasonable voter would not know if the proposed amendment intends to expunge
all current marijuana-related convictions that "occurred prior to the effective
date." Under this interpretation, a marijuana-related conviction would be only
expunged if (1) the conviction occurred prior to the amendment's effective date,
and (2) the sentence associated with the conviction was being served when the
amendment took effect. But a reasonable voter might also conclude that each and
every marijuana-related conviction must be expunged, regardless of when the
conviction occurred and whether the associated sentence was being served when
the amendment took effect. The effect of the proposed amendment on criminal
convictions is a matter of great importance to Arkansas voters. This ambiguity
must be clarified before I can accurately summarize the expungement requirement
in a ballot title.
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 Mary Lou Berry, Sponsor
Opinion No. 2017-030
Page 9
role in the shaping or drafting of such measures. My statutory mandate is
embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.
Based on what has been submitted, my statutory duty is to reject your proposed
ballot title for the foregoing reasons and instruct you to redesign the proposed
measure and ballot title. 21 You may resubmit your proposed act along with a
proposed popular name and ballot title at your convenience.
Sincerely,
Enclosure
21 Ark. Code Ann. § 7-9-107(c). ARKANSAS CANNABIS HEMP AND RECREATIONAL MARIJUANA AMENDMENT OF 2018
(Popular Name)
(Ballot Title)
AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT,
PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE
OF 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, POSSESSION OF
MARIJUANA, MARIJUANA PARAPHERNALIA, AND THE UNLAWFUL USE OF A COMMUNICATION
DEVICE AS IT PERTAINS TO THE SALE OF MARIJUANA; 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 THEREFROM FOR RECREATIONAL PURPOSES;
PROVIDING THAT A LICENSED PERSON OR BUSINESS MAY HAVE CULTIVATING 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 WITH A MARIJUANA LICENSE THAT IS 1500 FEET AWAY
OR MORE FROM A PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL
RECREATIONAL MARIJUANA TO ANY BUSINESS WITH A MARIJUANA LICENSE, OR 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)SHALL NOT BE 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; PROVIDING THAT IF THE STATE
FAl.LS TO BEGIN ISSUING CANNABIS HEMP LICENSES, FIELD TAGS, MARIJUANA LICENSES, AND
PLANT TAGS BY APRIL 19TH, 2019 SUCH LICENSES AND TAGS SHALL NOT BE REQUIRED TO
CULTIVATE, PRODUCE, AND SALE CANNABIS HEMP AND OR RECREATIONAL MARIJUANA UNTIL
SUCH LICENSES AND TAGS ARE ISSUED BY THE STATE AND 30 DAYS IS GIVEN FOR THOSE ENGAGED IN SUCH ACTIVITY TO OBTAIN SUCH LICENSES AND TAGS FOR THE ACTIVITY IN WHICH
THEY ARE ENGAGED.
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 lawful
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 sativa L plant species, living 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 (A9THC) and is not cultivated to produce an intoxicant.
(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 ten acres or less of cannabis hemp is being grown, and a field tag is required to be
posted for every ten acres of cannabis hemp grown, with a limit of ten ( 10) field tags allowed per licensed
business or person per year; for example: - less than ( <) 1 acre but not more than 1 O acres will require 1 field tag
- greater than(>) 10 acres but not more than 20 acres will require 2 field tags
- greater than(>) 40 acres but not more than 50 acres will require 5 field tags, and
- greater than (>) 90 acres but not more than 100 acres will require 10 field tags.
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 (A9THC) content of the operator'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) and is cultivated to produce an intoxicant.
(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
products produced from marijuana for recreational purposes. 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.
(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 introducing 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 from cannabis hemp" means items and substances manufactured from cannabis hemp,
containing three tenths of one percent (0.3%) or less delta-9-tetrahydrocannabinol (A9THC) and is not used as
an intoxicant.
0) "Products produced from marijuana" means items and substances manufactured from marijuana, containing
more than three tenths of one percent delta-9-tetrahydrocannabinol (A9THC) and is used as an intoxicant that
is consumed into the human body in the form of food, drink, vapor, or smoke.
(k) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an
intoxicant.
(I) "Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational
marijuana.
(m) "Remuneration" means an act in which money is being paid to purchase recreational marijuana.
Section 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 tag(s), and there shall be
a limit of ten ( 10) 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 or business who violates the provisions pursuant to this section the following 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 8 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. The cultivation, production, distribution, sale, possession, and use ofmarijuana and products produced from
marijuana 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,
but do not preclude the imposition of additional rules, regulations, and penalties that the state may adopt and
impose:
(a) The cost of a marijuana license that shall be issued and required by the state shall not exceed thirty dollars
($30.00) per license per year, and there shall be no limit to the number of licenses issued in this state, and any
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 licensed 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
marijuana, 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 another business with a marijuana license, or 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
identification card prior to the purchase.
(2) The business where recreational marijuana 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 business or 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 purposes 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 and sold with a standardized dosage not to exceed ten (10) milligrams of
delta-9-tetrahydrocannabinol (A9THC) per serving.
(3) Shall be delineated or scored into standardized serving sizes if the product contains more than one
serving and is in solid form.
(4) Shall be homogenized to ensure uniform disbursement of delta-9-tetrahydrocannabinol (A9THC)
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 (A9THC) content, potential effects of the product, and directions as
to how to consume the product.
Section 7. Marijuana paraphernalia authorized.
Notwithstanding any other provision of law, the following acts regarding marijuana paraphernalia shall not be
an offense under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to The Uniform
Controlled Substances Act §5-64-505:
(a) Any business or person twenty-one (21) years of age or older may manufacture, possess, and purchase
marijuana 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 criminal record expungement.
All persons currently serving incarceration, probation, or parole in this state, whose current and only
conviction(s) to which they are now serving were due to violating state laws as they pertain to the cultivation,
production, distribution, sale, and possession of marijuana, possession of marijuana paraphernalia, and or the
unlawful use of a communication device pertaining to the sale of marijuana, and whose violation(s) occurred
prior to the effective date of this amendment shall be released, and all criminal records in this state shall be
expunged of such convictions that occurred prior to the effective date of this amendment.
Section 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 recreational 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%) local 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 ·
(c) 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
recreational 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 by April
19th, 2019. If the state fails to begin issuing such licenses and tags by April 19th, 2019 the provisions of this
amendment requiring such licenses and tags shall not be enforced, and the state shall not prohibit or penalize
any business or person twenty-one years of age or older, engaged in the cultivation, production, and sale of
cannabis hemp and or recreational marijuana until such licenses and tags are issued by the state, and thirty
days is given in order for those engaged in such activity to obtain the proper licenses and tags for the activity in
which they are engaged.
Section 12. 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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