Why was the November 2017 Arkansas True Grass cannabis ballot title rejected by the AG?

Plain-English summary

Mary L. Berry, on behalf of the Arkansas True Grass Ballot Question Committee, submitted a popular name and ballot title for "The Arkansas Recreational Marijuana Amendment." This was the True Grass committee's first major submission in the 2017-2018 cycle (followed by 2017-127 and 2017-135). The proposed amendment would have legalized adult (18+) cultivation, production, sale, possession, and use of recreational marijuana, with a 5% excise tax, a 2% local sales tax, and detailed packaging, paraphernalia, and penalty rules.

The AG rejected the entire submission for two threshold reasons. First, the ballot title's clause listing 11 "unlawful" activities tracked Section 10 of the underlying measure almost verbatim. Section 10 had 13 subsections of "unlawful activities pursuant to this Amendment." The ballot title pulled 11 of those subsections in nearly identical language. The AG explained that determining whether such a copy-paste ballot title "adequately informs" voters under Lange v. Martin would require the AG to "pick and choose language from the text of the measure itself, which is tantamount to crafting a ballot title out of whole cloth." That work is beyond the AG's § 7-9-107 substitution authority, which is meant for refinement, not wholesale drafting.

Second, the AG identified fundamental inconsistency between Section 10's "unlawful" activities and Section 7's "not permitted" activities. Some activities appeared in both. "Driving under the influence of marijuana" was both an unlawful activity under Section 10(a)(13) and an activity the proposed measure was "not intended to permit" under Section 7(c). Same for minors cultivating, producing, distributing recreational marijuana (Section 7(e) versus Section 10(l)). The legal differences between unlawful conduct and conduct merely not permitted are operative: whether the activity is independently a crime, what penalties attach, what enforcement mechanisms apply. The internal inconsistency made it impossible to write a fair ballot title because the title would have to choose among the proponents' own conflicting characterizations of the same conduct.

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.

How the verbatim-copy problem works

The AG cited the rule from Lange v. Martin that ballot titles are legally insufficient unless they "adequately inform" voters of the measure's content, enabling a "reasoned decision in the voting booth." When a ballot title literally copies the underlying measure's text section-by-section, two related problems appear:

First, voters reading a verbatim copy are not getting a "summary." They are getting the measure's own lengthy enumeration repeated in title form. There is no information benefit from the summary process, just doubled length.

Second, if the copy is incomplete (here, 11 of 13 subsections), the AG would have to decide what was important enough to include and what could be left out. That picking-and-choosing creates AG drafting authority that § 7-9-107 does not grant. The AG can substitute language to refine a title, but cannot draft a title from scratch by rewriting the measure's text into a more compact form. The proper response when a title is essentially a copy is to send it back for redrafting.

How the internal-inconsistency problem works

Section 7 of the proposed amendment was titled "Employers, driving, minors, medical marijuana privileges." The AG read it as creating three classes of marijuana-related activities:

1. Activities the measure is not "intended to affect" (e.g., employer policies restricting employee use, Section 7(a)).
2. Activities the measure is "not intended to permit" (e.g., driving under the influence, Section 7(c)).
3. Activities the measure is not "intended to limit" (e.g., qualified medical-marijuana patient privileges, Section 7(g)).

Section 10 was titled "Unlawful activities pursuant to this Amendment." It listed 13 categories of activities described as "unlawful," including driving under the influence (Section 10(a)(13)) and minors using cannabis (Section 10(l)).

Read together, the same activities (driving under the influence, minors using cannabis) appeared in both sections under different legal frames. Was DUI of marijuana "unlawful" under Section 10 or merely "not permitted" by the amendment under Section 7? Those are not the same thing. "Unlawful" suggests an independently criminal activity with statutory penalties. "Not permitted by this amendment" suggests the amendment doesn't authorize the activity, leaving its legal status to whatever Arkansas law would otherwise provide.

Roberts v. Priest established that ballot titles cannot be approved when "the text of the proposal creates a disconnect between the ballot title and the content of the proposed measure" or when "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title, and to confusion in the ballot title itself." This was that situation. The AG could not write a fair ballot title because the underlying measure had not committed to a single answer on whether DUI and minor-use were criminal offenses or just unauthorized.

Common questions

Could the proponents fix this by deleting Section 10 or Section 7?
Maybe partially. Op. Att'y Gen. 2017-135 (the True Grass committee's later submission) shows them attempting that approach by deleting large portions of text. The AG rejected that submission too, concluding that simply removing language did not address the underlying drafting problems. Real fixes require structural redesign: pick one frame for each conduct category, commit to it, and revise both the text and the title accordingly.

What is the difference between "unlawful" and "not permitted" in Arkansas law?
"Unlawful" usually means independently criminal: someone can be prosecuted under a specific statute. "Not permitted" by a constitutional amendment means the amendment itself does not authorize the conduct; the conduct's legal status falls back to whatever other Arkansas law applies. Failing to distinguish the two creates real-world consequences: enforcement officers, prosecutors, and judges cannot tell which conduct triggers what response.

How many cannabis ballot titles did the AG reject in this cycle?
At least three from the True Grass committee alone (2017-122, 2017-127, 2017-135). The AG also rejected Op. Att'y Gen. 2017-120 (Danner) and 2017-126 (Hall) on different cannabis-related submissions. The 2017-2018 cycle was unusually heavy with cannabis submissions and rejections.

Why would a proponent submit a measure with such obvious internal inconsistencies?
Often because the drafters are trying to balance competing constituencies (e.g., legalization advocates and law-and-order voters) and end up writing language that pleases both groups but commits to neither. The AG's role under § 7-9-107 is to force resolution of those compromises before voters see the ballot.

Could the AG have certified the title with explanatory language?
No. Section 7-9-107 lets the AG substitute and certify a more suitable title, but only when the underlying measure can support a fair summary. When the text itself is internally inconsistent, no title can summarize it fairly because there is no consistent thing to summarize.

Background and statutory framework

Section 7-9-107 codifies AG ballot-title review with three options: certify, substitute and certify, or reject. The Arkansas Supreme Court's leading cases are Becker v. Riviere (fair understanding standard), Bailey v. McCuen (essential-fact rule and no misleading tendency), Lange v. Martin (adequately inform), and Roberts v. Priest (text-title connection and no internal inconsistency). The latter is the most directly applicable to this rejection: when the underlying measure's text creates a disconnect or internal inconsistency, no ballot title can be approved.

The True Grass series of submissions (2017-122, 2017-127, 2017-135) shows the iterative pattern: each rejection identifies specific drafting problems, each resubmission attempts to fix some but not all of them, and the cycle continues without certification.

Citations

• Ark. Code Ann. § 7-9-107 (popular name and ballot title certification)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (intelligible scope and import)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154 (adequately inform voters)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (text-title disconnect, internal inconsistency)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (fair understanding standard)
• Op. Att'y Gen. 2017-127 (subsequent True Grass submission)
• Op. Att'y Gen. 2017-135 (final True Grass submission in cycle)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-122
November 28, 2017
Mary L. Berry, Officer
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
Arkansas True Grass Ballot Question Committee
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
At the outset, I wish to make clear 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 a measure when making a decision to certify or reject.
Section 7-9-107 authorizes my office to 1) certify the popular name and ballot title
of a proposed measure, 2) substitute and certify the popular name and ballot title,
or 3) reject the entire submission if the "nature of the issue ~] is presented in such
manner that the ballot title would be misleading" to voters. The purpose of my
review under section 7-9-107 is to ensure that the popular name and ballot title
honestly, intelligibly, and fairly set forth the purpose of the proposed amendment.2
In this way, voters will have a fair understanding of the issues presented by
reference to the ballot title alone. 3
At the time they are submitted to my office under section 7-9-107, the popular
name and ballot title for proposed constitutional amendments and acts "should be
complete enough to convey an intelligible idea of the scope and import of the
1 Ark. Code Ann.§ 7-9-107(c).
2 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).
3 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPH ONE (501) 682-2007 · FAX (50 I) 682-8084
ARKANSASAG.GOV Mary L. Berry, Officer
Ark. True Grass BQC
Opinion No. 2017-122
Page 2
proposal."4 And it follows from my duty to reject misleading submissions that any
ballot title submitted for review should represent the sponsor's attempt to
summarize her proposed amendment or act in a non-misleading fashion. While I
am authorized to substitute and certify a ballot title that is more suitable (in terms
of affording voters a fair understanding of the issues presented), section 7-9-107
does not contemplate that I generate a ballot title when the ballot title submitted is
wholly deficient. Nor does the statute require that I modify the proposed measure
itself in order to then summarize the measure's text in a suitable ballot title.
Crafting the measure's text and accurately summarizing that text in a ballot title
are the sponsor's responsibility prior to submission.
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
The Arkansas Recreational Marijuana Amendment
Ballot Title
An amendment to the Arkansas Constitution concernmg the
cannabis plant, and in connection therewith, permitting the
cultivation, production, distribution, sale, possession and use of
marijuana and products produced therefrom for recreational
purposes by adults, 18 years of age or older; recognizing that such
activity remain unlawful under federal law; providing for the
expungement of all marijuana related convictions from criminal
records that were imposed under the Arkansas Uniformed Controlled
4 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted).
The Arkansas Supreme Cout1 has explained that ballot titles are legally insufficient unless they
"adequately inform" voters and enable a "reasoned decision in the voting booth." Lange v.
Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. Likewise, a ballot title cannot be approved ifthe
text of the proposal creates a disconnect between the ballot title and the content of the proposed
measure. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). This is because
"internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot
title, and to confusion in the ballot title itself." Id. Mary L. Berry, Officer
Ark. True Grass BQC
Opinion No. 2017-122
Page 3
Substances Act prior to the enactment of this amendment; providing
for the release of persons from incarceration, probation, and parole
whose current and only convictions were for violating the State law
in regards to marijuana; defining recreational marijuana containing
more than 0.3% THC; providing that a business entity or an adult
may cultivate, produce, distribute, sell, purchase, transport, and use
recreational marijuana and products produced therefrom; providing
that a person 18 years of age or older, or business entity may
cultivate marijuana plants in a location not subject to public view
without optical aid; providing that any location where more than a
total of 12 marijuana plants is being grown for recreational purposes,
the location is registered with the county sheriffs office in the
county in which the plants are being grown; permitting the transport
of recreational marijuana out of public view; permitting the
consumption of recreational marijuana wheresoever the consumption
of alcohol is permitted by adults; providing that sales of recreational
marijuana will be subject to existing sales tax, and an additional 5%
recreational marijuana excise tax, and a local sales tax of 2%;
permitting any adult or business entity that is 1500 feet away or
more from a public or private school, church, or daycare may sell
recreational marijuana and products produced therefrom to any adult
person 18 years of age or older with proof of age; limiting the
quantity of recreational marijuana products that can be sold per day
to buyers presenting an out of state proof of age; providing that the
recreational marijuana that is sold in the form of edibles or
drinkables (a) shall not be designed to appeal to children; (b) shall
not exceed 10 milligrams of the 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; providing that the
following activities shall be or remain unlawful under State law; (a)
cultivating, producing, distributing, selling, possessing and using
recreational marijuana while under 18 years of age; (b) providing
recreational marijuana to a person under 18 years of age with or
without remuneration; (c) cultivating more than 12 marijuana plants
in a location that has not been registered with the county sheriffs
office; ( d) cultivating recreational marijuana subject to public view
without optical aid; ( e) [sic] using flammable solvents to extract
THC from the marijuana plant in a residential area; (f) selling more
than one half an ounce of smokable [sic] or vaporizable recreational Mary L. Berry, Officer
Ark. True Grass BQC
Opinion No. 2017-122
Page 4
marijuana and more than 32 ounces of edible or drinkable
recreational marijuana to an adult who presents an out of state
identification; (g) selling recreational marijuana within 1500 feet of
a public or private school, daycare center, or church; (h) selling
recreational marijuana products that does [sic] not provide labels
with required product information, designed to appeal to children, or
exceeds 10 mg per serving; (i) transporting marijuana subject to
public view; U) consuming recreational marijuana where the
consumption of alcohol is prohibited or where the owner(s)
prohibited such use; (k) operating a motorized vehicle with a THC
blood content that exceeds 14 nanograms per milliliter; providing
penalties for violations pursuant to the Amendment that include (a) a
fine not to exceed two-hundred dollars ($200.00) for a first time
offense, (b) a Class C misdemeanor charge for second time offense
with the right to cultivate, produce and sell relinquished for one year,
and ( c) a Class B misdemeanor charges for subsequent offenses with
the right to cultivate, produce, and sell recreational marijuana
relinquished for 5 years; and providing that the Amendment (a) is
not intended to affect the ability of employers to have policies
restricting the use of recreational marijuana by employees (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 18 years of age, ( d) does not permit anyone under 18
years of age to cultivate, produce, sell, purchase, transport, or use
recreational marijuana and; ( e) is not intended to limit any privileges
or rights of a qualifying patient, caregiver, physician, or, any license
[sic] entity pursuant to the Arkansas Medical Marijuana Amendment
of2016.
RESPONSE
My statutory duty is to certify, substitute and certify, or reject the entire proposal.
And my office attempts in the usual course to identify problems in the text of a
proposed measure that prevent certification of a satisfactory ballot title. But there
are threshold shortcomings in your submission that preclude any detailed review
under section 7-9-107( c ).
First, the text of your proposed measure contains a lengthy section that appears to
have been simply copied over to the ballot title. Section 10 ("Unlawful activities
pursuant to this Amendment") has 13 subsections, which purport to describe Mary L. Berry, Officer
Ark. True Grass BQC
Opinion No. 2017-122
Page 5
activities related to recreational marijuana that will be "unlawful." And in a clause
with 11 subsections, your proposed ballot title states that "the following activities
shall be or remain unlawful under state law .... " The clause in the ballot title
tracks the language in Section 10 almost exactly. As a result, determining if the
ballot title "adequately inform[s]"5 voters of the measure's content would require
me to pick and choose language from the text of the measure itself, which is
tantamount to crafting a ballot title out of whole cloth. This is beyond the scope of
my authority under section 7-9-107.
Moreover, there is a fundamental inconsistency between the "unlawful" activities
listed in Section 10, and the activities discussed in Section 7 ("Employers, driving,
minors, medical marijuana privileges."). Section 7 appears to create three classes
of marijuana-related activities: those the proposed measure is not "intended to
affect," such as an employer's ability to restrict the use of marijuana by its
employees;6 those the proposed measure is "not intended to permit," such as
driving under the influence of marijuana;7 and those the proposed measure is not
"intended to limit," such as rirhts and privileges under the Arkansas Medical
Marijuana Amendment of2016.
As an initial matter, I cannot distinguish between the conduct described in Section
10 as "unlawful" and the conduct described in Section 7 as merely not
"permit[ted]." For example, "driving under the influence of marijuana" appears to
be both an unlawful activity9 and an activity that the proposed measure is "not
intended to permit .... "10 And the same is true of minors cultivating, producing,
distributing, etc. recreational marijuana. 11
5 Lange, 2016 Ark. 337, 500 S.W.3d 154, at n. 2 (noting the importance of voters' ability to make
a "reasoned decision in the voting booth.").
6 See Section 7(a).
7 See Section 7( c ).
8 See Section 7(g).
9 Section 10(a)(l3).
10 Section 7(c).
11 Compare Section 7( e) ("Nothing in this amendment is intended to permit any minor to cultivate
... recreational marijuana and products produced therefrom.") with Section 10(1) ("The following Mary L. Berry, Officer
Ark. True Grass BQC
Opinion No. 2017-122
Page 6
There are important, operative differences between unlawful conduct and conduct
that is not affirmatively permitted under a given law. To the extent a proposed
amendment addresses both categories of conduct, the sponsor must attempt to
explain (in the text of the measure itself) how these categories interact. Because
your proposed measure fails to do so, I cannot begin to review the sufficiency of
' the proposed ballot title.
CONCLUSION
The Arkansas Constitution does not charge my office with any role in drafting
initiated constitutional amendments or acts. My duty in reviewing submissions
under section 7-9-107 is to the electorate as a whole. I cannot advise or advocate
for individual sponsors.12 Sponsors must make the necessary efforts to ensure that
their proposed measures, popular names, and ballot titles have been thoroughly
vetted for compliance with the high standards established by the Court prior to
their submission to my office.
Your submission falls short of the mm1mum criteria under section 7-9-107.
Therefore, I cannot analyze whether the ballot title, or the nature of the issue, is
presented in such a way that the ballot title would be misleading. While the
deficiencies noted above are not necessarily all of the issues preventing
certification of a popular name and ballot title for your proposed measure, they are
sufficiently serious that I am unable to further review your submission pursuant to
section 7-9-107(c). I must reject your entire ballot title, popular name, and
proposed measure.
Sincerely,
~~ LESLIE RUTLED
Attorney General
Enclosure
activities ... are unlawful ... pursuant to this amendment: cultivating ... recreational marijuana if
under the age of eighteen ( 18) years old.").
12 See Op. Att'y Gen. 2017-032 (citing Ark. Code Ann. § 25-16-701 (Supp. 2015) for the
proposition that the Attorney General is prohibited from engaging in the private practice of law). (POPULAR NAME)
THE ARKANSAS RECREATIONAL MARIJUANA AMENDMENT
(BALLOT TITLE)
AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT, AND IN
CONNECTION THEREWITH, PERMITTING THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE,
POSSESSION AND USE OF MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR
RECREATIONAL PURPOSES BY ADULTS, 18 YEARS OF AGE OR OLDER; RECOGNIZING THAT SUCH
ACTIVITY REMAIN UNLAWFUL UNDER FEDERAL LAW; PROVIDING FOR THE EXPUNGEMENT OF
ALL MARIJUANA RELATED CONVICTIONS FROM CRIMINAL RECORDS THAT WERE IMPOSED UNDER
THE ARKANSAS UNIFORMED CONTROLLED SUBSTANCES ACT PRIOR TO THE ENACTMENT OF
THIS AMENDMENT; PROVIDING FOR THE RELEASE OF PERSONS FROM INCARCERATION,
PROBATION, AND PAROLE WHOSE CURRENT AND ONLY CONVICTIONS WERE FOR VIOLATING THE
STATE LAW IN REGARDS TO MARIJUANA; DEFINING RECREATIONAL MARIJUANA CONTAINING
MORE THAN 0.3% THC; PROVIDING THAT A BUSINESS ENTITY OR AN ADULT MAY CULTIVATE,
PRODUCE, DISTRIBUTE, SELL, PURCHASE, TRANSPORT, AND USE RECREATIONAL MARIJUANA
AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT A PERSON 18 YEARS OF AGE OR
OLDER, OR BUSINESS ENTITY MAY CULTIVATE MARIJUANA PLANTS IN A LOCATION NOT SUBJECT
TO PUBLIC VIEW WITHOUT OPTICAL AID; PROVIDING THAT ANY LOCATION WHERE MORE THAN A
TOTAL OF 12 MARIJUANA PLANTS IS BEING GROWN FOR RECREATIONAL PURPOSES, THE
LOCATION IS REGISTERED WITH THE COUNTY SHERIFF'S OFFICE IN THE COUNTY IN WHICH THE
PLANTS ARE BEING GROWN; PERMITTING THE TRANSPORT OF RECREATIONAL MARIJUANA OUT
OF PUBLIC VIEW; PERMITTING THE CONSUMPTION OF RECREATIONAL MARIJUANA
WHERESOEVER THE CONSUMPTION OF ALCOHOL IS PERMITTED BY ADULTS; PROVIDING THAT
SALES OF RECREATIONAL MARIJUANA WILL BE SUBJECT TO EXISTING SALES TAX, AND AN
ADDITIONAL 5% RECREATIONAL MARIJUANA EXCISE TAX, AND A LOCAL SALES TAX OF 2%;
PERMITTING ANY ADULT OR BUSINESS ENTITY THAT IS 1500 FEET AWAY OR MORE FROM A
PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL RECREATIONAL MARIJUANA AND
PRODUCTS PRODUCED THEREFROM TO AN ADULT PERSON 18 YEARS OF AGE OR OLDER WITH
PROOF OF AGE; LIMITING THE QUANTITY OF RECREATIONAL MARIJUANA PRODUCTS THAT CAN
BE SOLD PER DAY TO BUYERS PRESENTING AN OUT OF STATE PROOF OF AGE; PROVIDING THAT
THE RECREATIONAL MARIJUANA THAT IS 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; PROVIDING THAT
THE FOLLOWING ACTIVITIES SHALL BE OR REMAIN UNLAWFUL UNDER STATE LAW; (A)
CULTIVATING, PRODUCING, DISTRIBUTING, SELLING, POSSESSING AND USING RECREATIONAL
MARIJUANA WHILE UNDER 18 YEARS OF AGE; (B) PROVIDING RECREATIONAL MARIJUANA TO A
PERSON UNDER 18 YEARS OF AGE WITH OR WITHOUT REMUNERATION; (C) CULTIVATING MORE
THAN 12 MARIJUANA PLANTS IN A LOCATION THAT HAS NOT BEEN REGISTERED WITH THE
COUNTY SHERIFF'S OFFICE; (D) CULTIVATING RECREATIONAL MARIJUANA SUBJECT TO PUBLIC
VIEW WITHOUT OPTICAL AID;(E) USING FLAMMABLE SOLVENTS TO EXTRACT THC FROM THE
MARIJUANA PLANT IN A RESIDENTIAL AREA; (F) SELLING MORE THAN ONE HALF AN OUNCE OF
SMOKABLE OR VAPORIZABLE RECREATIONAL MARIJUANA AND MORE THAN 32 OUNCES OF
EDIBLE OR DRINKABLE RECREATIONAL MARIJUANA TO AN ADULT WHO PRESENTS AN OUT OF
STATE IDENTIFICATION; (G) SELLING RECREATIONAL MARIJUANA WITHIN 1500 FEET OF A PUBLIC
OR PRIVATE SCHOOL, DAYCARE CENTER, OR CHURCH; (H) SELLING RECREATIONAL MARIJUANA PRODUCTS THAT DOES NOT PROVIDE LABELS WITH REQUIRED PRODUCT INFORMATION,
DESIGNED TO APPEAL TO CHILDREN, OR EXCEEDS 10 MG PER SERVING; (!)TRANSPORTING
MARIJUANA SUBJECT TO PUBLIC VIEW; (J) CONSUMING RECREATIONAL MARIJUANA WHERE THE
CONSUMPTION OF ALCOHOL IS PROHIBITED OR WHERE THE OWNER(S) PROHIBITED SUCH USE;
(K) OPERATING A MOTORIZED VEHICLE WITH A THC BLOOD CONTENT THAT EXCEEDS 14
NANOGRAMS PER MILLILITER; PROVIDING PENAL TIES FOR VIOLATIONS PURSUANT TO THE
AMENDMENT THAT INCLUDE (A) A FINE NOT TO EXCEED TWO-HUNDRED DOLLARS ($200.00) FOR A
FIRST TIME OFFENSE,(B) A CLASS C MISDEMEANOR CHARGE FOR SECOND TIME OFFENSE WITH
THE RIGHT TO CULTIVATE, PRODUCE AND SELL RELINQUISHED FOR ONE YEAR, AND (C) A CLASS
B MISDEMEANOR CHARGES FOR SUBSEQUENT OFFENSES WITH THE RIGHT TO CULTIVATE,
PRODUCE, AND SELL RECREATIONAL MARIJUANA RELINQUISHED FOR 5 YEARS; AND PROVIDING
THAT THE AMENDMENT (A) IS NOT INTENDED TO AFFECT THE ABILITY OF EMPLOYERS TO HAVE
POLICIES RESTRICTING THE USE OF RECREATIONAL MARIJUANA BY EMPLOYEES (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 18 YEARS OF AGE,
(D) DOES NOT PERMIT ANYONE UNDER 18 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL,
PURCHASE, TRANSPORT, OR USE RECREATIONAL MARIJUANA AND; (E) IS NOT INTENDED TO
LIMIT ANY PRIVILEGES OR RIGHTS OF A QUALIFYING PATIENT, CAREGIVER, PHYSICIAN, OR, ANY
LICENSE ENTITY PURSUANT TO THE ARKANSAS MEDICAL MARIJUANA AMENDMENT OF 2016.
Section I. The following is added as an amendment to the Arkansas Constitution:
§ 1. Short title.
This is an amendment to the Arkansas Constitution that may be cited as "The Arkansas Recreational
Marijuana Amendment.
§ 2. Effective Date.
This amendment is effective on and after November 7th 2018.
§ 3. Definitions.
The following terms are defined for the purposes of this amendment:
(a) "Adult" means a person who is eighteen years of age or older.
(b) "Business entity" means a person or group of persons, who are eighteen (18) years of age or older,
performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or
livelihood, whether for profit or not for profit.
(c) "Cultivation location" or "location" means the physical address where marijuana is being grown for
recreational purposes.
(d) "Cultivator" means an adult or business entity that is growing recreational marijuana plants.
(e) "Drive or Driving under the influence of marijuana" means operating a motorized vehicle on any public road,
highway, or street when the Delta-9-tetrahydrocannabinol (b.9THC) content of the operator's blood exceeds
fourteen nanograms per milliliter (14ng/mL).
(f) "Marijuana" or "Recreational 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 (b.9THC), and is cultivated to be used as an intoxicant.
(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 related offense(s)" means a violation of the Uniformed Controlled Substances Act that occurred
prior to the effective date of this amendment for one or more of the following:
1) Possession of marijuana;
2) Possession with the intent to manufacture and deliver marijuana;
3) Manufacturing, distributing, and delivering marijuana;
4) Distributing or delivering marijuana in proximity of certain facilities;
5) The unlawful use of a communication device as it pertains to the distribution of marijuana;
6) Possession of marijuana paraphernalia.
(i) "Minor" means a person who is under the age of eighteen (18) years of age.
U) "Products produced from recreational marijuana", "products produced therefrom", or "products therefrom"
means items and substances manufactured from recreational marijuana, containing more than three tenths of
one percent (0.3%) delta-9-tetrahydrocannabinol (~9THC) and is used as an intoxicant for recreational
purposes, and is consumed into the human body in the form of food, drink, vapor, or smoke.
(k) "Recreational purposes" means to be used as an intoxicant for the reason of enjoyment or pleasure.
(I) "Remuneration" means an act in which money is being paid to purchase recreational marijuana and or
products produced therefrom for recreational purposes.
(m) "Use recreational marijuana and products produced therefrom", "use recreational marijuana", or "consume
recreational marijuana" means to ingest, inhale, or otherwise introduce recreational marijuana into the human
body.
§ 4. Lawful Recreational Marijuana Activities
Notwithstanding any other provision of law, the following activities regarding recreational marijuana and
products produced therefrom shall not be offenses under Arkansas law, or be a basis for seizure or forfeiture of
assets pursuant to The Uniform Controlled Substances Act;
(a) Any adult or business entity may cultivate recreational marijuana, and produce products therefrom provided
that:
1) Recreational marijuana is cultivated in a location where the plant(s) is (are) not subject to public
view without the use of binoculars, aircraft, or other optical aids.
2) Any location where there are more than a total of twelve (12) marijuana plants being grown by
one or more cultivators, the location is to be registered with the county sheriff's office in the
county in which the plants are being grown, provided that:
A. the cost to register the cultivation location shall not exceed two-hundred and fifty dollars
($250.00) per year per location.
3) The act of using flammable solvents to extract delta-9-tetrahydrocannabinol (~9THC) from the
marijuana plant shall be prohibited in residential areas.
(b) Any adult or business entity may distribute, sell, and purchase recreational marijuana and products
produced therefrom provided that:
1) All buyers of recreational marijuana provides proof of age with any valid state identification card
or any state driver's license prior to purchase, provided that;
A. Any adult or business entity who provides an out of state identification to purchase
recreational marijuana shall be limited to the following purchases per day:
(i) up to one-half ounce (1/2 oz) of smokable or vaporizable recreational marijuana, and
(ii) up to thirty-two ounces (32 oz) of edible or drinkable recreational marijuana.
2) The location where recreational marijuana and products produced therefrom 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 products produced from recreational marijuana being sold is designed and packaged
pursuant to §5 of this amendment.
(c) Any adult or business entity may transport recreational marijuana and products produced therefrom
provided that;
1) Recreational marijuana and products produced therefrom must not be subject to public view
during transport.
(d) Any adult or business entity may use recreational marijuana and products produced therefrom wheresoever
the consumption of alcohol is permitted, provided that;
1) The owner(s) of the property does not prohibit such use.
§ 5. Recreational marijuana product design, packaging and labeling.
(a) All edible and drinkable products produced from recreational marijuana that is sold by any business entity
or adult 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 (.ll9THC) 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
(.ll9THC) throughout the product.
5) Shall provide information on th~ 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 recreational marijuana that is sold by any business
entity or adult;
1) Shall provide information on the packaging or labeling to enable the informed consumption of
such product, including the delta-9-tetrahydrocannabinol (.ll9THC) content, potential effects of
the product, and directions as to how to consume the product.
(c) All products produced from recreational marijuana that is distributed by any adult or business entity without
remuneration to any adult or business entity shall be exempt from the design, packaging, and labeling
requirements of this section.
§6. Marijuana paraphernalia
Any adult or business entity may manufacture, possess, and purchase marijuana paraphernalia, or may sell
marijuana paraphernalia to another adult or business entity, providing that such paraphernalia sold that
contains recreational marijuana is designed, packaged, and labeled pursuant to §5 of this amendment.
§7. Employers, driving, minors, medical marijuana privileges:
(a) Nothing in this amendment is intended 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 affect the ability of property owners to have policies restricting or
prohibiting the cultivation, production, distribution, sale, possession and use of recreational marijuana on his or
her property.
(c) Nothing in this amendment is intended to permit driving under the influence of marijuana.
(d) Nothing in this amendment is intended to permit the transfer of recreational marijuana or products produced
therefrom, with or without remuneration, to a minor. (e) Nothing in this amendment is intended to permit any minor to cultivate, produce, sell, purchase, transport,
possess, or use recreational marijuana and products produced therefrom.
(f) Nothing in this amendment is intended to permit the cultivation, production, distribution, or sale, of any other
substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances
Act.
(g) Nothing in this amendment is intended to limit any privileges or rights of a qualifying patient, caregiver,
physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana
Amendment of 2016.
§8. Expungement of Prior Convictions for Marijuana Related Offenses.
(a) All convictions for a marijuana related offense, as defined in §3(h) of this amendment, shall be expunged
from all criminal records in this state.
(b) The State shall release from incarceration, probation, and parole all persons whose current and only
conviction(s) in which they are serving was for a marijuana related offense as defined in §3(h) of this
amendment.
§9. Taxation and distribution of proceeds from the sale of recreational marijuana.
(a) The following taxes shall be imposed upon the purchase of recreational marijuana 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 distribution of tax revenues received by the Department of Finance and Administration from the sale of
recreational marijuana under this amendment may be determined by the general assembly.
§1 O Unlawful activities pursuant to this Amendment:
(a) The following activities in regards to recreational marijuana are unlawful under state law pursuant to this
amendment;
1) cultivating, producing, distributing, selling, purchasing, possessing, and using recreational marijuana if
under the age of eighteen (18) years old.
2) manufacturing, possessing, selling, or purchasing marijuana paraphernalia if under the age of eighteen
(18) years old.
3) providing recreational marijuana and marijuana paraphernalia to a minor with or without remuneration.
4) having more than a total of twelve (>12) recreational marijuana plants in a cultivation location that has
not been registered with the county sheriffs office.
5) cultivating recreational marijuana plant in a location subject to public view.
6) cultivating, producing, distributing, selling, and using recreational marijuana on property where the
owner(s) prohibit such activity.
7) using flammable solvents to extract delta-9-tetrahydrocannabinol (~9THC) from recreational marijuana
in residential areas.
8) selling recreational marijuana within one thousand five hundred feet (1500') of a public or private
school, daycare center, or church.
9) selling more than what is permitted to an adult or business entity who provides an out of state
identification to purchase recreational marijuana, pursuant to §4(b)1A (i) and(ii) of this amendment. 10) selling products produced from recreational marijuana that has not been designed, packaged, and
labeled pursuant to §5 of this amendment.
11) transporting recreational marijuana subject to public view.
12) consuming recreational marijuana wheresoever the consumption of alcohol is prohibited.
13) driving under the influence of marijuana.
§11. Penalties
(a) Any person found guilty of one or more unlawful activity pursuant to §10 of this amendment the following
penalties may be imposed;
1) First time offense: upon conviction is guilty of a violation, a penalty not greater than two-hundred
dollars ($200) shall be imposed.
2) Second time 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 days (30) days in jail, and his or her right to
cultivate, produce, and sell recreational marijuana and products produced therefrom shall be
relinquished for one (1) year.
3) Third time or subsequent 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 his or
her right to cultivate, produce, and sell recreational marijuana and products produced therefrom shall
be relinquished for five (5) years.
§12. Conflicting Laws.
The provisions of this Amendment are hereby declared to be severable, 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.