Are Arkansas billboards advertising recreational marijuana from neighboring states legal?
Plain-English summary
Representative Steven Walker reported that several billboards in northern Searcy County, Arkansas, were advertising recreational marijuana dispensaries in Missouri. Walker asked the AG two questions:
- Is it legal in Arkansas for a billboard to advertise a product (here, recreational marijuana) that the federal government classifies as a Schedule I substance under the Controlled Substances Act?
- If yes to (1), would the same be true if a neighboring state legalized methamphetamine or another federally controlled stimulant?
The AG declined to answer because of pending litigation. Good Day Farm Arkansas, LLC, et al. v. State of Arkansas, et al., No. 60CV-22-931, was active in Pulaski County Circuit Court at the time. The outcome of that case could directly affect the answers. The AG's long-standing policy is not to opine on matters before the courts.
The AG cited prior opinions (Ops. 2023-028, 2016-027, 2010-047) for the policy. The decline-to-opine policy preserves judicial primacy: courts decide pending cases on a fully developed record; the AG opines on legal questions that are not actively being litigated.
This is a procedural opinion. It tells the public and the requesting legislator that the AG cannot answer the question now and points to where the answer will come from (the courts). It does not endorse or oppose either side.
What this means for you
Billboard advertising companies
The legality of marijuana advertising for cross-border products in Arkansas is unresolved as of this opinion. The Pulaski County Circuit Court litigation will likely produce the controlling answer. In the interim:
- Treat the legal status as uncertain. Consult counsel before accepting or running advertising for federally controlled substances even when the underlying activity is legal in the source state.
- Monitor the litigation. The Good Day Farm case docket will reveal the path forward.
- Be aware that Arkansas's First Amendment commercial-speech analysis intersects with federal Controlled Substances Act treatment of marijuana as Schedule I. The interaction is the heart of the dispute.
Marijuana dispensaries (especially those near the Arkansas border)
If you advertise into Arkansas from Missouri or another neighboring state where you are legally licensed, your advertising is at legal risk in Arkansas pending the litigation outcome. Coordinate with counsel about your advertising spend in border markets. Watch for the court's ruling in Good Day Farm.
State legislators
The AG's decline notes that judicial action will likely settle the question. If the legislature wants a clearer rule (either prohibiting cross-border marijuana advertising in Arkansas or expressly permitting it), legislative action could resolve the issue regardless of how the litigation goes. As of this opinion, the legislature had not enacted controlling guidance.
Constitutional and First Amendment attorneys
The case raises the Central Hudson commercial-speech framework against the federal Schedule I classification. Federal courts have addressed similar issues in Massachusetts, Colorado, and elsewhere. The Pulaski County Circuit Court's decision will be a useful state-level data point.
Law enforcement
Until the litigation resolves, the legal status of cross-border marijuana advertising in Arkansas is unclear. Enforcement actions against billboard advertisers should be coordinated with prosecuting attorneys and constitutional counsel. Premature enforcement could be reversed if the Good Day Farm court rules that the advertising is protected.
Common questions
Why doesn't the AG just answer the legal question?
Because the court is the constitutional decision-maker for live disputes. The AG's role on opinions is to advise on legal questions outside of litigation. When a court is actively considering the same question, the AG defers to preserve the proper allocation of authority. This is a long-standing policy across Arkansas AG administrations.
What happens if the Good Day Farm case is dismissed without a merits ruling?
The AG could revisit the question. If the litigation ends without resolving the cross-border advertising issue, future litigants and legislators have less guidance, and the AG might be asked again.
Can the AG be compelled to opine?
No. AG opinion authority is discretionary. The AG can decline based on policy (pending litigation, factual complexity, legislative dispute). The decline is not a refusal of jurisdiction; it's a policy choice to defer to other decision-makers.
Does this mean the billboards are legal in the meantime?
The opinion does not say. The status is unresolved pending litigation. Until the court rules, advertisers and law enforcement should consult counsel about specific situations.
What is Good Day Farm Arkansas, LLC v. State of Arkansas?
A pending case in Pulaski County Circuit Court (No. 60CV-22-931). Without the merits decision, the AG cannot summarize the holding. Litigants and observers should consult the court's docket for current status.
Background and statutory framework
The AG's opinion authority under Arkansas law is discretionary. The AG can decline to opine on questions for various reasons, including pending litigation. Past AG opinions establishing the pending-litigation policy: Ops. 2023-028, 2016-027, 2010-047. Each declined to opine when the question overlapped with active litigation.
The Controlled Substances Act, 21 U.S.C. § 801 et seq., classifies marijuana as a Schedule I substance, the most restrictive federal category. Some states (Missouri among them) have legalized marijuana for recreational and medical use under state law. The federal-state conflict is the legal backdrop of the question Walker raised.
The First Amendment commercial-speech framework from Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), asks (1) whether the speech concerns lawful activity and is not misleading; (2) whether the asserted government interest is substantial; (3) whether the regulation directly advances that interest; and (4) whether the regulation is narrowly tailored. The Arkansas state-court litigation likely engages this framework, though the AG opinion does not develop it.
Citations
- Controlled Substances Act, 21 U.S.C. § 801 et seq.
- Good Day Farm Arkansas, LLC, et al. v. State of Arkansas, et al., No. 60CV-22-931, Pulaski County Circuit Court
- Ark. Att'y Gen. Ops. 2023-028, 2016-027, 2010-047 (decline-to-opine on pending litigation)
Source
Original opinion text
Opinion No. 2023-035
August 24, 2023
The Honorable Steven Walker
State Representative
408 Fairway Drive
Horseshoe Bend, Arkansas 72512
Dear Representative Walker:
I am writing in response to your request for my opinion regarding the legality of certain billboard
advertisements. You report that northern Searcy County contains several billboards "that are
advertising recreational marijuana dispensaries in Missouri." You ask two questions about these
billboards:
1. In Arkansas, is it legal for billboards to advertise a product that the federal government
classifies as a "Schedule 1 substance," under the Controlled Substances Act?
2. If so, if a neighboring state passed a law legalizing federally controlled stimulants, such as
methamphetamine, would billboards and other advertising that promotes that product in
our state be permitted?
RESPONSE
I must respectfully decline to opine on your questions because of pending litigation, the outcome
of which may directly affect the answers to the questions you raised. It is the long-standing policy
of the Office of the Attorney General, as a member of the executive branch, to decline to opine on
matters that are pending before the courts for resolution.
I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may
be of future assistance in some other respect.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General