How does the Arkansas Attorney General review the ballot title and popular name of an initiated constitutional amendment, and what changes did the AG make to the 'Arkansas Medical Cannabis Amendment of 2024' before certifying it?

Plain-English summary

Before circulating petitions for a constitutional amendment, sponsors in Arkansas must submit the proposal's text, popular name, and ballot title to the Attorney General. The AG has three options: certify as submitted, substitute and certify a corrected version, or reject and explain why.

Erika Gee submitted a proposed amendment titled "Arkansas Medical Cannabis Amendment of 2024" that would significantly expand the medical marijuana framework adopted by Amendment 98 in 2016 (broadening qualifying conditions, replacing "physician" with "health care practitioner," extending registry card terms, allowing home cultivation, allowing adult possession of up to one ounce if federal law changes, etc.). The AG had previously rejected an earlier version (Opinion 2024-014). This second submission was substantively similar but had a few new issues.

The AG's resolution: substitute and certify a corrected popular name and ballot title.

The substantive corrections:

1. "Medical cannabis" replaced with "medical marijuana." The measure's text uses "marijuana" throughout (the operative provisions in §§ 3 to 8 do not use "cannabis"), and Amendment 98 itself uses "medical marijuana." Using "cannabis" in the popular name and ballot title was confusing because cannabis can refer to the regulated plant (marijuana) or the unregulated plant (hemp).

2. Citations corrected. The original ballot title cited "Amendment 98, § 5(a)(1)–(2)" but only § 5(a)(1) actually contains the term "physician" being replaced. Citation narrowed to § 5(a)(1).

3. "Obtain" replaced with "apply for and receive." The measure's text uses the latter phrasing. Aligning the ballot title with the text avoided creating a discrepancy.

4. Removed inaccurate description of warning/educational material requirements. The measure's text only amends § 8(m)(1)(A), but the original ballot title described changes the measure does not actually make to § 8(m)(1)(B). The AG removed those phrases.

5. Added missing summaries of material provisions. The Arkansas Supreme Court has held a ballot title cannot omit "essential facts which would give the voter serious ground for reflection." The original ballot title did not summarize several provisions that fit that bar (removal of registry-card application/renewal fees; expanded definition of "usable marijuana" including cannabinols; advertising restrictions; ABC regulation of any future adult-use sales). The AG added language summarizing each.

6. Grammatical fixes. Punctuation, wording corrections so the title reads cleanly.

The AG also flagged a cautionary note: long, complex ballot titles are vulnerable to post-election challenges in court. The Arkansas Supreme Court has repeatedly warned sponsors that title length and complexity correlate with legal risk.

What this means for you

Ballot initiative sponsors

If you are drafting an initiated constitutional amendment in Arkansas, this opinion is a tutorial in the AG's review standards, with line-edits flagged. A few practical takeaways:

Use the same vocabulary in your popular name, ballot title, and operative text. The AG's first big edit here was swapping "cannabis" for "marijuana" because the measure's body text and the amended Amendment 98 both use "marijuana." Inconsistency between names is a primary basis for rejection or substitution.

Cite only what you actually amend. The AG narrowed a § 5(a)(1)-(2) citation to § 5(a)(1) because subsection (2) was not in fact being changed. Be precise about which subsections you are amending and check every citation in the ballot title against your operative text.

Summarize every material change. The Arkansas Supreme Court treats omission of material provisions as misleading, which can sink your initiative even after voters pass it. The AG added language summarizing four material provisions the sponsor had left out. If you would not be comfortable arguing in court that voters could decide based on what was in your ballot title, add it.

Watch ballot title length. The AG's caution is real. Bailey v. McCuen, 318 Ark. 277 (1994), and other cases have held overlong, complex titles unconstitutional as misleading by their sheer impenetrability. There is tension between summarizing every material provision and keeping the title readable. Iterate and consider whether any provisions can be split into separate amendments or simplified.

Voters following 2024 initiatives

The certified ballot title for the "Arkansas Medical Marijuana Amendment of 2024" runs more than 600 words. That length itself is a legal vulnerability. If the measure had qualified for the ballot and passed, opponents could have challenged it post-election on grounds the title was misleading or insufficient. The AG's caution about length and complexity is not just a stylistic preference; it is a legal warning to sponsors that voters and courts may later say the title did not accurately convey what they were voting on.

Election law attorneys

The opinion provides a useful catalog of current ballot-title doctrine in one place: the Becker v. Riviere "fair understanding" standard, the Wilson v. Martin / Cox v. Daniels rule on technical-term definition, the Bailey v. McCuen "essential facts" omission rule, and the Roberts v. Priest rule that ambiguities in the underlying measure can independently doom the title. If you are advising a sponsor, the opinion's framework is useful boilerplate.

Lobbyists and advocacy organizations

If you are funding signature collection on an initiated amendment, treat the AG certification as one of three sequential gates. Even after certification, your title is exposed to (1) Arkansas Supreme Court ballot-title review on a pre-election challenge and (2) post-election litigation on the same grounds if you win. Lock in a litigation strategy and a backup-title strategy before circulating signatures, not after.

Common questions

What's the difference between popular name and ballot title?
The popular name is short, like a headline. The ballot title is the full summary that appears on the ballot voters mark. Both go to the AG together. The popular name has lower technical requirements but cannot be misleading or partisan. The ballot title must summarize the measure fairly, including all material provisions, without omitting essential facts.

Why did the AG say "cannabis" was misleading?
Two reasons. First, the operative provisions of the measure (§§ 3 to 8) use "marijuana" throughout, not "cannabis." Inconsistency between name and text is misleading. Second, "cannabis" is broader than "marijuana" in Arkansas law. A.C.A. § 5-64-101(16)(A) defines "marijuana" as parts of the cannabis plant containing THC, while A.C.A. § 2-15-503 defines hemp as cannabis with no more than 0.3% delta-9 THC. "Cannabis" alone could refer to either. "Marijuana" is more precise.

Does the AG's certification mean the amendment is constitutional?
No. The AG only reviews popular name and ballot title sufficiency. Whether the underlying amendment is constitutional, conflicts with federal law, or has unintended legal consequences is outside the AG's certification authority. A separately initiated post-election lawsuit can challenge the amendment's substantive legality.

Can the sponsor revise after the AG substitutes?
Yes. A sponsor who disagrees with the AG's substituted version can revise the underlying measure (since the AG cannot modify the measure itself, only the title) and resubmit. Or the sponsor can challenge the AG's substituted title in the Arkansas Supreme Court before circulation.

What's "ballot title fatigue" and why does it matter?
The AG warns that long, complex ballot titles are statistically more likely to be successfully challenged in court. A.C.A. § 7-5-309(b)(1)(B) gives voters a maximum of ten minutes in the booth. Bailey v. McCuen, 318 Ark. at 288, connects that time limit to ballot title manageability. A title that takes more than several minutes to read may itself be evidence of misleading complexity.

Is this a 5-year-or-older opinion that needs a currency note?
No. This opinion was issued in 2024 (within 5 years), and Arkansas's Amendment 98 framework remains in effect. The 2024 amendment proposal it analyzed did not appear on the ballot.

Background and statutory framework

Sponsor submission and AG review. A.C.A. § 7-9-107(a)–(b) requires the sponsor to submit the original draft of the measure (full text plus ballot title and popular name) to the AG. § 7-9-107(d)–(e) gives the AG ten business days to certify, substitute and certify, or reject and direct redesign.

Popular name standards. Pafford v. Hall, 217 Ark. 734 (1950), describes the popular name as a "useful legislative device." Chaney v. Bryant, 259 Ark. 294 (1976), and Moore v. Hall, 229 Ark. 411 (1958), require the popular name to be neither misleading nor partisan. May v. Daniels, 359 Ark. 100 (2004), requires reading popular name and ballot title together for sufficiency.

Ballot title standards. Becker v. Riviere, 270 Ark. 219 (1980), establishes the impartial-summary requirement. Wilson v. Martin, 2016 Ark. 334, requires definition of technical terms readers would not understand. Bailey v. McCuen, 318 Ark. 277 (1994), establishes the rule that omission of "essential facts which would give the voter serious ground for reflection" is fatal. Plugge v. McCuen, 310 Ark. 654 (1992), recognizes ballot titles need not address every legal argument the measure might evoke. Becker v. McCuen, 303 Ark. 482 (1990), and Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994), require the title to convey "an intelligible idea of the scope and significance" of the proposed change. Richardson v. Martin, 2014 Ark. 429, holds that text expressly stating it "will repeal inconsistent laws" is sufficient notice. Roberts v. Priest, 341 Ark. 813 (2000), holds that ambiguities in the measure's text can themselves doom a ballot title.

Length and complexity warnings. The AG cited prior AG opinions (2023-038, 2007-160, 2005-212, 2000-137) summarizing the Court's repeated warnings that ballot titles' length and complexity correlate with successful challenges.

Petition instructions. A.C.A. § 7-9-108 requires instructions to canvassers and signers to precede every petition.

Citations

• A.C.A. § 7-9-107 (sponsor submission and AG review of ballot titles)
• A.C.A. § 7-9-108 (canvasser/signer instructions)
• A.C.A. § 7-5-309(b)(1)(B) (ten-minute voting booth time limit)
• A.C.A. § 5-64-101(16)(A) (definition of "marijuana")
• A.C.A. § 2-15-503 (definition of hemp)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Richardson v. Martin, 2014 Ark. 429, 444 S.W.3d 855
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Armstrong v. Thurston, 2022 Ark. 167, 652 S.W.3d 167

Source

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

Original opinion text

Opinion No. 2024-028
February 20, 2024
Erika Gee, Attorney
Wright Lindsey & Jennings LLP
200 West Capitol Avenue, Suite 2300
Little Rock, Arkansas 72201
Dear Ms. Gee:
I am writing in response to your request, made under A.C.A. § 7-9-107, that I certify the
popular name and ballot title for a proposed constitutional amendment. In Opinion No.
2024-014, I rejected a prior version of your proposed initiated amendment to the Arkansas
Constitution. You have now revised the language of your proposal and submitted it for
certification.
My decision to certify or reject a popular name and ballot title is unrelated to my view of
the proposed measure’s merits. I am not authorized to consider the measure’s merits when
considering certification.
1. Request. Under A.C.A. § 7-9-107, you have asked me to certify the following popular
name and ballot title for a proposed initiated amendment to the Arkansas Constitution:
Popular Name
Arkansas Medical Cannabis Amendment of 2024
Ballot Title
This amendment to the Arkansas Constitution expands access to medical
cannabis by qualified patients under the Arkansas Medical Marijuana
Amendment of 2016, Amendment 98 and ratifies and affirms that
amendment as originally adopted and as amended by any legislative act,
except as specified; amending Amendment 98, §2(4)(B) to define
"cultivation facility" as including sale and delivery of usable marijuana to a
processor; amending Amendment 98, §2(12) to replace the definition of
"physician" with "health care practitioner," which includes medical and Ms. Erika Gee
Opinion No. 2024-028
Page 2
osteopathic doctors, nurse practitioners, physicians' assistants, and
pharmacists and to remove requirements for federal controlled-substances
registration; amending Amendment 98, §§ 4(f), 5(a)(l)-(2), 5(f)(1), 5(h);
and 15 to replace references to physicians with references to health care
practitioners; amending Amendment 98, § 2(13)(C) to add language to the
definition of "qualifying medical condition" including any condition not
otherwise specified in Amendment 98 that a health care practitioner
considers debilitating to a patient that might be alleviated by the use of
usable marijuana; amending Amendment 98, § 2(14)(A) to allow
non-Arkansas residents to obtain registry identification cards in the same
way as Arkansas residents; amending Amendment 98, § 2(17) to define
"usable marijuana" as including all parts of the plant Cannabis sativa,
including any seeds, resin, compound, manufacture, salt, derivative,
mixture, isomer or preparation of the plant, including tetrahydrocannabinol
and all other cannabinol derivatives, and to exclude hemp with a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry
weight basis; amending Amendment 98, § 2(19) to remove language
requiring a physician-patient relationship from the definition of "written
certification" and to allow assessments in person or by telemedicine;
amending Amendment 98, § 3(e) to allow licensed dispensaries to receive,
transfer, or sell marijuana seedlings, plants, or usable marijuana to and from
Arkansas-licensed cultivation facilities, processors, or other dispensaries, to
accept marijuana seeds, seedlings, or clones from any individual or entity
authorized by law to possess them, and to sell usable marijuana, marijuana
seedlings, plants or seeds to qualifying patients and designated caregivers;
amending Amendment 98, § 3(h) to remove language allowing professional
licensing boards to sanction a physician for improper evaluation of a
patient's medical condition or for violating the standard of care; amending
Amendment 98, § 3(1) to remove authorization for Department of Health
rules concerning visiting qualifying patients obtaining marijuana from a
dispensary; amending Amendment 98, § 4(a)(4)(A) to require criminal
background checks for all applicants seeking to serve as designated
caregivers, with the exception of parents or guardians of minor qualifying
patients applying to serve as designated caregivers for those minors;
amending Amendment 98, § 5(d) to extend the expiration date of registry
identification cards from one to three years and to add two additional years
to the expiration of date of existing cards; amending Amendment 98, §
8(e)(8) to remove and replace advertising restrictions with restrictions for
dispensaries, processors, and cultivation facilities narrowly tailored to
prevent advertising and packaging from appealing to children and to require
packaging that cannot be opened by a child or that prevents ready access to
toxic or harmful amounts of the product; amending Amendment 98, §
8(m)(l)(A) to remove prohibitions on dispensary-provided paraphernalia
requiring combustion of marijuana, requirements relating to vaporizers, and
requirements for warnings and educational materials regarding methods of Ms. Erika Gee
Opinion No. 2024-028
Page 3
ingestion; amending Amendment 98, § 8(m)(4)(A)(ii) to allow cultivation
facilities to sell marijuana in any form to dispensaries, processors, or other
cultivation facilities; amending Amendment 98, § 16 to replace its current
language with a waiver of state sovereign immunity so that a licensed
person or entity may seek injunctive relief in the event the state fails to
follow Amendment 98; amending Amendment 98, § 21 to remove a
prohibition on the growing of marijuana by qualifying patients and
designated caregivers and to allow such growing under Amendment 98;
repealing Amendment 98, §§ 23 and 26 in their entirety; amending
Amendment 98 to allow qualifying patients or caregivers at least 21 years
old to keep and to plant marijuana plants in limited quantities and sizes at
their domicile solely for the personal use of a qualifying patient, to prohibit
sale, bartering, and trade of such marijuana plants, and to provide for
regulation of such activities by the Alcoholic Beverage Control Division;
amending Amendment 98 to allow possession by adults of up to one ounce
of usable marijuana and to allow sale of marijuana by licensed cultivation
facilities and dispensaries for adult use if current federal law prohibiting
such activities changes; amending Arkansas Constitution, Article 5, § 1, to
provide that unless provided in such constitutional amendment, no
constitutional amendment shall be amended or repealed unless approved by
the people under the Constitution; providing that this amendment's
provisions are severable, nullifying any provision of state law in conflict
with this amendment; and providing that the amendment is self-executing.
2. Rules governing my review. Arkansas law requires sponsors of statewide initiated
measures to “submit the original draft” of the measure to the Attorney General.1 An
“original draft” includes the full text of the proposed measure along with its ballot title and
popular name.2 Within ten business days of receiving the sponsor’s original draft, the
Attorney General must respond in one of three ways:
• First, the Attorney General may approve and certify the ballot title and popular
name in the form they were submitted.3
• Second, the Attorney General may “substitute and certify a more suitable and
correct ballot title and popular name.”4 But A.C.A. § 7-9-107 does not authorize
the Attorney General to modify the text of the proposed measure itself.
1 A.C.A. § 7-9-107(a).
2 A.C.A. § 7-9-107(b).
3 A.C.A. § 7-9-107(d)(1).
4 Id. Ms. Erika Gee
Opinion No. 2024-028
Page 4
• Third, the Attorney General may reject both the popular name and ballot title “and
state his or her reasons therefor and instruct” the sponsors to “redesign the proposed
measure and the ballot title and popular name.”5 This response is permitted when,
after reviewing the proposed measure, the Attorney General determines that “the
ballot title or the nature of the issue” is (1) “presented in such manner” that the
ballot title would be misleading or (2) “designed in such manner” that a vote for or
against the issue would actually be a vote for the outcome opposite of what the
voter intends.6
3. Rules governing the popular name. The popular name is primarily a useful legislative
device.7 While it need not contain detailed information or include exceptions that might be
required of a ballot title, the popular name must not be misleading or partisan.8 And it must
be considered together with the ballot title in determining the ballot title’s sufficiency.9
4. Rules governing the ballot title. The ballot title must summarize the proposed act. The
Arkansas Supreme Court has developed general rules for what must be included in the
summary and how that information must be presented. Sponsors must ensure their ballot
titles impartially summarize the measure’s text and give voters a fair understanding of the
issues presented.10 The Court has also disapproved the use of terms that are “technical and
not readily understood by voters.”11 Ballot titles that do not define such terms may be
deemed insufficient.12
Additionally, sponsors cannot omit material from the ballot title that qualifies as an
“essential fact which would give the voter serious ground for reflection.”13 Yet the ballot
title must also be brief and concise lest voters exceed the statutory time allowed to mark a
ballot.14 The ballot title is not required to be perfect, nor is it reasonable to expect the title
5 A.C.A. § 7-9-107(e).
6 Id.
7 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
8 E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 414–
15, 316 S.W.2d 207, 208–09 (1958).
9 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
10 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
11 Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167 (citing Cox v. Daniels, 374 Ark. 437, 288 S.W.3d
591 (2008)).
12 Id.
13 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
14 A.C.A. §§ 7-9-107(d)(2) (requiring the ballot title “submitted” to the Attorney General or “supplied by the
Attorney General” to “briefly and concisely state the purpose the proposed measure”), 7-5-309(b)(1)(B) Ms. Erika Gee
Opinion No. 2024-028
Page 5
to address every possible legal argument the proposed measure might evoke.15 The title,
however, must be free from any misleading tendency—whether by amplification,
omission, or fallacy—and it must not be tinged with partisan coloring.16 Although the ballot
title need not summarize existing law,17 it must be honest and impartial,18 and it must
convey an intelligible idea of the scope and significance of a proposed change in the law.19
The Court has held that a proposed measure that expressly states that it “will repeal
inconsistent laws” is sufficient to inform the voters “that all laws which are in conflict will
be repealed.”20
Finally, the Court has held that a ballot title cannot be approved if the text of the proposed
measure itself contributes to confusion and disconnect between the language in the popular
name and the ballot title and the language in the measure.21 Where the effects of a proposed
measure on current law are unclear or ambiguous, I am unable to ensure the popular name
and ballot title accurately reflect the proposal’s contents until the sponsor clarifies or
removes the ambiguities in the proposal itself.
5. Application to your popular name. Your popular name uses the phrase “medical
cannabis.” But none of the operative and substantive portions of the measure’s text, §§ 3
to 8, define or use the phrase “medical cannabis.”22 Nor does Amendment 98 define or use
that phrase. And, as I noted in Opinion No. 2024-014, such a phrase creates ambiguity
concerning whether “medical cannabis” is a category distinct from “usable marijuana,”
“cannabis,” or even “medical marijuana.” Cannabis generally can refer to what is being
regulated here—“usable marijuana” or marijuana—or to what is not being regulated here—
hemp,23 which is exempted from the definition of “usable marijuana” in § 3(e) of the
(allowing no more than ten minutes); see Bailey, 318 Ark. at 288, 884 S.W.2d at 944 (noting the connection
between the measure’s length and the time limit in the voting booth).
15 Plugge v. McCuen, 310 Ark. 654, 658, 841 S.W.2d 139, 141 (1992).
16 Bailey, 318 Ark. at 284, 884 S.W.2d at 942 (internal citations omitted); see also Shepard v. McDonald,
189 Ark. 29, 70 S.W.2d 566 (1934).
17 Armstrong v. Thurston, 2022 Ark. 167, 10, 652 S.W.3d 167, 175.
18 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
19 Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 250, 884 S.W.2d 605, 610 (1994).
20 Richardson v. Martin, 2014 Ark. 429, 9, 444 S.W.3d 855, 861.
21 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
22 Only §1 of the measure’s text, the “Short Title, which is not required for initiated constitutional
amendments, and § 2 of the measure’s text, the “Effective Date; Intent,” use the phrase “medical cannabis.”
23 See, e.g., A.C.A. §§ 5-64-101(16)(A) (defining “marijuana” as “[a]ny part and any variety or species, or
both, of the Cannabis plant that contains THC (Tetrahydrocannabinol) whether growing or not…[but] does
not include…[h]emp-derived cannabidiol” that contains no more than .3% delta-9 THC on a dry-weight Ms. Erika Gee
Opinion No. 2024-028
Page 6
measure’s text. In my opinion, the phrase “medical marijuana” is a better reflection of your
proposed measure. Therefore, I am substituting and certifying a “more suitable” popular
name.24 The popular name provided below is substituted and certified for your proposed
constitutional amendment.
6. Application to your ballot title. Having reviewed the text of your proposed
constitutional amendment and ballot title, I believe the following changes to your ballot
title are necessary to ensure that your ballot title clearly and accurately sets forth the
purpose of your proposed initiated amendment to the Arkansas Constitution:
• “Medical cannabis.” For the reasons discussed above in the popular name section
and in Opinion No. 2024-014, I have replaced the term “cannabis” with
“marijuana” in the phrase “medical marijuana” that appears in the first clause of the
ballot title.
• “Physicians” vs. “health care practitioners.” The ballot title states that the
proposed measure amends Amendment 98, § 5(a)(l)–(2), to “replace references to
physicians with references to health care practitioners.” But only § 5(a)(l) contains
any reference to “physician.” So I have changed the citation in that clause from
“Amendment 98, § 5(a)(l)–(2)” to “Amendment 98, § 5(a)(l).”
• “Obtain” vs. “apply for and receive.” The ballot title currently provides that the
proposed measure amends “Amendment 98, § 2(14)(A) to allow non-Arkansas
residents to obtain registry identification cards.” But the measure’s text uses the
phrase “to apply for and receive” instead of “obtain,” which is less clear and
accurate. So I have replaced the term “obtain” in that clause with the phrase “to
apply for and receive.”
• Removal of warning and educational requirements. The ballot title provides that
the proposed measure amends “Amendment 98, § 8(m)(l)(A) to remove
prohibitions on dispensary-provided paraphernalia requiring combustion of
marijuana, requirements relating to vaporizers, and requirements for warnings and
educational materials regarding methods of ingestion.” But the measure’s text
amends § 8(m)(l)(A) to read: “A dispensary licensed under this section may
acquire, possess, manufacture, process, prepare, deliver, transfer, transport, supply,
and dispense marijuana, marijuana plants and seeds, marijuana paraphernalia, and
related supplies and educational materials to a qualifying patient or designated
basis”), 2-15-503 (defining “industrial hemp” as the “plant Cannabis sativa and any part of the plant,
including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of
isomers, whether growing or not, with a total delta-9 tetrahydrocannabinol concentration of no more than
three-tenths of one percent (0.3%) of the hemp-derived cannabadiol on a dry weight basis, unless specifically
controlled under the Uniform Controlled Substances Act, § 5-64-101 et seq.”).
24 See A.C.A. § 7-9-107(d)(1) (authorizing the Attorney General to “substitute and certify a more suitable
and correct ballot title and popular name for each amendment or act”). Ms. Erika Gee
Opinion No. 2024-028
Page 7
caregiver.” The measure’s text says nothing about “remov[ing] prohibitions on” the
“requirements for warnings and educational materials regarding methods of
ingestion.” Therefore, there is a mismatch between the language contained in the
ballot title and the measure’s text. Further, Amendment 98, § 8(m)(1)(B) pertains
to requirements for warnings and educational materials, but the ballot title and the
measure’s text only references amending § 8(m)(1)(A). So I have removed the
portion of the clause concerning “requirements relating to vaporizers, and
requirements for warnings and educational materials regarding methods of
ingestion.”
• Ballot title summaries. The Arkansas Supreme Court has interpreted the Arkansas
Constitution to require that sponsors include all material in the ballot title that
qualifies as an “essential fact which would give the voter serious ground for
reflection.”25 But your proposed constitutional amendment contains material
provisions that do not appear in your ballot title, which would likely give voters
“serious ground for reflection” and would render the ballot tile misleading by
omission (all emphases below have been added):
o Amending Amendment 98, § 5(a)(2) to remove language requiring
reasonable registry identification card application fees or renewal fees;
o Amending Amendment 98 to allow qualifying patients or caregivers at least
21 years old and in possession of a valid registry identification card to
possess, plant, dry, and process marijuana plants in limited quantities and
sizes at their domicile solely for the personal use of the qualifying patient,
to prohibit sale, bartering, and trade of such marijuana plants, and to provide
for regulation of such activities by the Alcoholic Beverage Control
Division;
o Amending Amendment 98, § 2(17) to define “usable marijuana” as
cannabis and other substances including all parts of the plant Cannabis
sativa, whether growing or not, including any seeds, resin, compound,
manufacture, salt, derivative, mixture, isomer or preparation of the plant,
including tetrahydrocannabinol and all other cannabinol derivatives, and to
exclude hemp with a delta-9 tetrahydrocannabinol concentration of not
more than 0.3 percent on a dry weight basis;
o Amending Amendment 98, § 8(e)(8) to remove and replace advertising
restrictions with restrictions for dispensaries, processors, and cultivation
facilities narrowly tailored to prevent advertising and packaging from
appealing to children and to require the Alcoholic Beverage Control to
make rules that require packaging that cannot be opened by a child or that
prevents ready access to toxic or harmful amounts of the product; and
25 Bailey, 318 Ark. at 285, 884 S.W.2d at 942. Ms. Erika Gee
Opinion No. 2024-028
Page 8
o Amending Amendment 98 to authorize the Alcoholic Beverage Control
Division to enact rules and regulate the wholesale and retail sale of
marijuana by licensed cultivation facilities and dispensaries for adult use if
current federal law prohibiting such activities changes.
Therefore, I have added language to your ballot title that summarizes these
provisions.
• Grammatical changes. I have also made minor grammatical changes and
clarifications to your ballot title to ensure it is not misleading or confusing to the
voter and that it accurately reflects the content of your proposed constitutional
amendment. Some of the key grammatical changes are as follows:
o The semicolon between “5(h)” and “15” has been changed to a comma;
o The phrase “‘qualifying medical condition’ including any condition not
otherwise specified in Amendment 98” has been changed to “qualifying
medical condition’ to include any condition not otherwise specified in
Amendment 98”;
o The phrase “with the exception of parents or guardians of minor qualifying
patients” has been changed to “with the exception of parents or guardians
of minors who are qualifying patients”; and
o The first occurrence of the word “of” in the phrase “the expiration of date
of existing cards” has been removed so that the phrase now reads: “and to
add two additional years to the expiration date of existing cards.”26
7. Substitution and certification. With the above changes incorporated, the following
popular name and ballot title are substituted and certified:
Popular Name
Arkansas Medical Marijuana Amendment of 2024
Ballot Title
This amendment to the Arkansas Constitution expands access to medical
marijuana by qualified patients under the Arkansas Medical Marijuana
Amendment of 2016, Amendment 98 and ratifies and affirms that
amendment as originally adopted and as amended by any legislative act,
26 This grammatical change also accurately matches the measure’s text, which uses the phrase “expiration
date.” Ms. Erika Gee
Opinion No. 2024-028
Page 9
except as specified; amending Amendment 98, § 2(4)(B) to define
"cultivation facility" as including sale and delivery of usable marijuana to a
processor; amending Amendment 98, § 2(12) to replace the definition of
"physician" with "health care practitioner," which includes medical and
osteopathic doctors, nurse practitioners, physicians' assistants, and
pharmacists and to remove requirements for federal controlled-substances
registration; amending Amendment 98, §§ 4(f), 5(a)(l), 5(f)(1), 5(h), and 15
to replace references to physicians with references to health care
practitioners; amending Amendment 98, § 2(13)(C) to add language to the
definition of "qualifying medical condition" to include any condition not
otherwise specified in Amendment 98 that a health care practitioner
considers debilitating to a patient that might be alleviated by the use of
usable marijuana; amending Amendment 98, § 2(14)(A) to allow
non-Arkansas residents to apply for and receive registry identification cards
in the same way as Arkansas residents; amending Amendment 98, § 2(17)
to define "usable marijuana" as cannabis and other substances including all
parts of the plant Cannabis sativa, whether growing or not, including any
seeds, resin, compound, manufacture, salt, derivative, mixture, isomer or
preparation of the plant, including tetrahydrocannabinol and all other
cannabinol derivatives, and to exclude hemp with a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent on a dry
weight basis; amending Amendment 98, § 2(19) to remove language
requiring a physician-patient relationship from the definition of "written
certification" and to allow assessments in person or by telemedicine;
amending Amendment 98, § 3(e) to allow licensed dispensaries to receive,
transfer, or sell marijuana seedlings, plants, or usable marijuana to and from
Arkansas-licensed cultivation facilities, processors, or other dispensaries, to
accept marijuana seeds, seedlings, or clones from any individual or entity
authorized by law to possess them, and to sell usable marijuana, marijuana
seedlings, plants or seeds to qualifying patients and designated caregivers;
amending Amendment 98, § 3(h) to remove language allowing professional
licensing boards to sanction a physician for improper evaluation of a
patient's medical condition or for violating the standard of care; amending
Amendment 98, §3(1) to remove authorization for Department of Health
rules concerning visiting qualifying patients obtaining marijuana from a
dispensary; amending Amendment 98, § 4(a)(4)(A) to require criminal
background checks for all applicants seeking to serve as designated
caregivers, with the exception of parents or guardians of minors who are
qualifying patients applying to serve as designated caregivers for those
minors; amending Amendment 98, § 5(a)(2) to remove language requiring
reasonable registry identification card application fees or renewal fees;
amending Amendment 98, § 5(d) to extend the expiration date of registry
identification cards from one to three years and to add two additional years
to the expiration date of existing cards; amending Amendment 98, § 8(e)(8)
to remove and replace advertising restrictions with restrictions for Ms. Erika Gee
Opinion No. 2024-028
Page 10
dispensaries, processors, and cultivation facilities narrowly tailored to
prevent advertising and packaging from appealing to children and to require
the Alcoholic Beverage Control to make rules that require packaging that
cannot be opened by a child or that prevents ready access to toxic or harmful
amounts of the product; amending Amendment 98, § 8(m)(l)(A) to remove
prohibitions on dispensary-provided paraphernalia requiring combustion of
marijuana; amending Amendment 98, § 8(m)(4)(A)(ii) to allow cultivation
facilities to sell marijuana in any form to dispensaries, processors, or other
cultivation facilities; amending Amendment 98, § 16 to replace its current
language with a waiver of state sovereign immunity so that a licensed
person or entity may seek injunctive relief in the event the state fails to
follow Amendment 98; amending Amendment 98, § 21 to remove a
prohibition on the growing of marijuana by qualifying patients and
designated caregivers and to allow such growing under Amendment 98;
repealing Amendment 98, §§ 23 and 26 in their entirety; amending
Amendment 98 to allow qualifying patients or caregivers at least 21 years
old and in possession of a valid registry identification card to possess, plant,
dry, and process marijuana plants in limited quantities and sizes at their
domicile solely for the personal use of the qualifying patient, to prohibit
sale, bartering, and trade of such marijuana plants, and to provide for
regulation of such activities by the Alcoholic Beverage Control Division;
amending Amendment 98 to allow possession by adults of up to one ounce
of usable marijuana, to allow sale of marijuana by licensed cultivation
facilities and dispensaries for adult use if current federal law prohibiting
such activities changes, and to provide for the regulation of the wholesale
and retail of marijuana by licensed cultivation facilities and dispensaries by
the Alcoholic Beverage Control Division; amending Arkansas Constitution,
Article 5, § 1, to provide that unless provided in such constitutional
amendment, no constitutional amendment shall be amended or repealed
unless approved by the people under the Constitution; providing that this
amendment's provisions are severable, nullifying any provision of state law
in conflict with this amendment; and providing that the amendment is self-
executing.
While the foregoing has been substituted and certified, I believe that, in light of the
significance of the subject matter undertaken and the potential complexity and far-reaching
effects of this proposal, a few cautionary notes are warranted. You should be aware that
experience has shown a correlation between the length and complexity of initiated
measures and their susceptibility to a successful ballot-title challenge. Any ambiguity in
the text of a measure could lead to a successful court challenge. Significant changes in law
often have unintended consequences that, if known, would give voters serious ground for
reflection. As several of my predecessors have noted when certifying certain lengthy and
complex ballot titles, the Arkansas Supreme Court has repeatedly warned sponsors of Ms. Erika Gee
Opinion No. 2024-028
Page 11
statewide measures about their ballot titles’ length and complexity.27 In Opinion No. 2023-
038, I recently summarized the Court’s decisions on the significance of a ballot title’s
length and complexity.
Under A.C.A. § 7-9-108, instructions to canvassers and signers must precede every
petition, informing them of the privileges granted by the Arkansas Constitution and the
associated penalties for violations. I have included a copy of the instructions that should be
incorporated into your petition before circulation.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General
27 E.g., Ark. Att’y Gen. Ops. 2023-038, 2007-160, 2005-212, 2000-137.