Why did Arkansas reject Robert Reed's Hemp and Cannabis Amendment of 2018 ballot title?

Plain-English summary

Robert Reed submitted "The Arkansas Hemp and Cannabis Amendment of 2018" for AG certification. The proposal would have made cultivation, manufacture, distribution, sale, possession, and use of the cannabis plant lawful effective January 1, 2019. AG Leslie Rutledge rejected the popular name and ballot title because the underlying measure had seven significant ambiguities:

1. "Derived products" with mixed ingredients. Section 2 made lawful the possession of "all products derived from the cannabis plant." But what about a product that contains cannabis and other regulated or prohibited ingredients? And how little cannabis must a product contain to still count as "derived from" cannabis?

2. Possession without regard to use. Section 2 made lawful possession of cannabis without reference to use. Sections 5 and 6 then said hemp and "Cannabis" could be regulated only for "personal, industrial, or commercial" use. That created an implication that possession for some other (non-personal, non-industrial, non-commercial) use is exempt from regulation, which is hard to summarize.

3. Two definitions of "cannabis." The proposal used "cannabis" (lowercase) to refer to the entire genus and "Cannabis" (capitalized) to refer only to plants with >1% THC. Distinguishing the two by capitalization alone is unnecessarily confusing and difficult to describe in a ballot title.

4. Regulation of derived products. Sections 5 and 6 said hemp and "Cannabis" could be regulated but did not expressly say derived products could be. So could the General Assembly regulate the products?

5. Hemp versus "Cannabis" prohibition power. Section 6 said "Cannabis" possession could be regulated but not prohibited. Section 5 said hemp could be regulated but the number of plants cultivated and derived products could not be limited or prohibited. The asymmetry suggested some hemp-related acts could be prohibited while "Cannabis"-related acts could not, but the boundary was unclear.

6. Release eligibility for "only conviction." Section 7 said release applied to persons "whose only conviction(s) were due to violating state laws" related to marijuana. Did that exclude someone currently incarcerated for a marijuana offense who had earlier completed a separate, unrelated sentence?

7. Expungement timing. Section 7 covered "violations" before the effective date and "convictions" before the effective date. Was someone convicted after the effective date for conduct before the effective date denied expungement?

Because the underlying measure was internally ambiguous, the AG could not substitute and certify a corrected title. Reed could redesign and resubmit.

Currency note

This opinion was issued in 2016. 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: What's a "derived product" in cannabis-related law?
A: There is no universally agreed definition. Cannabis-derived products can include edibles, oils, tinctures, topicals, and many manufactured items. Reed's proposal lumped them all in but did not say how to handle products with mixed ingredients or minimal cannabis content.

Q: What's the federal preemption point in this proposal?
A: Reed's ballot title noted that "[p]reemptive federal law will remain in effect unless altered by Congress." That's accurate as far as it goes (cannabis is still a Schedule I federal controlled substance and federal law preempts contrary state law to the extent of conflict), but it does not cure the underlying ambiguities of the state-law text.

Q: Did the proposal address tax revenue?
A: No. Reed's proposal did not include any tax structure. The recreational/hemp legalization concept did not specify state revenue mechanisms.

Q: How does this differ from the cannabis ballot proposal that did pass in 2016?
A: The Arkansas Medical Marijuana Amendment of 2016, a separate proposal, set up a structured medical-only regime with a Medical Marijuana Commission, qualifying conditions, dispensaries, and cultivation facilities. Reed's proposal was broader and less detailed, which was part of why it failed certification.

Background and statutory framework

Arkansas' ballot-title certification process at Ark. Code Ann. § 7-9-107 requires AG review for every proposed constitutional amendment. The AG can certify, substitute a corrected title and certify, or reject. Roberts v. Priest directs rejection (rather than substitution) when the underlying proposal is internally inconsistent.

The Arkansas Supreme Court has held that a ballot title must be "honest and impartial," must "convey an intelligible idea of the scope and significance of a proposed change in the law" (Christian Civic Action Committee), and must not be tinged with partisan coloring or misleading by amplification, omission, or fallacy (Bailey v. McCuen). When the underlying proposal is itself ambiguous, the AG cannot fairly summarize it.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (certification process)
• Ark. Code Ann. § 7-5-309 (voting booth time limit)

Cases (selected):

• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (rejection for internal inconsistency)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts and brevity)
• Lange v. Martin, 2016 Ark. 337 (reasoned decision standard)
• Wilson v. Martin, 2016 Ark. 334 (defined-terms requirement)

Source

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

Original opinion text

Opinion No. 2016-110
November 4, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Robert L. Reed
295 Elan Trail
Dennard, AR 72629

Dear Mr. Reed:

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 titled "The Arkansas Hemp and Cannabis Amendment of 2018."

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 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.

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.

RESPONSE

It is my opinion, based on Arkansas Supreme Court precedent, 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.

1. Section 2 of the proposal would make lawful the possession, etc., of "all products derived from the cannabis plant." It seems reasonable to expect that such products would in some instances contain ingredients or components other than cannabis. It is not clear whether the proposal, being a constitutional amendment, would make unenforceable statute law that regulates or prohibits possession, etc., of such an ingredient or component, or of an item, otherwise prohibited, that contains cannabis as an ingredient or component. Neither is it clear how little cannabis a product could contain and still be deemed to be "derived" from cannabis, and whose legal prohibition would therefore be precluded.

2. Section 2 of the proposal would make lawful the possession, etc., of the cannabis plant and products derived therefrom without regard to the use to be made thereof. Sections 5 and 6 would permit regulation of hemp and "Cannabis" "for personal, industrial, or commercial use." While it may be difficult to imagine a use that is not "personal, industrial, or commercial," the language used carries an implication that possession, etc., if not for such use, would be free from regulation. It is not clear how the proposal would operate in this regard.

3. The proposal refers generally to the "cannabis" plant, but also defines in section 3 the word "Cannabis" to refer to something less than all "cannabis." This usage is unnecessarily confusing and difficult to describe in a ballot title.

4. Sections 5 and 6 would permit regulation of hemp and "Cannabis" but would not expressly authorize regulation of products derived therefrom. Additionally, section 5, regarding hemp, provides that "the products derived from manufacturing, shall not be limited or prohibited ...." It is not clear whether the proposal is intended to wholly preclude the General Assembly from regulating products derived from "Cannabis." Neither is the extent of the General Assembly's intended regulatory authority over products derived from hemp clear.

5. Section 6 provides that possession, etc., of "Cannabis" may be regulated but not prohibited. Section 5 provides that possession, etc., of hemp may be regulated but that "the number of plants cultivated or the products derived from manufacturing, shall not be limited or prohibited ...." The usage suggests that certain acts relating to hemp, but not to "Cannabis," may be prohibited, but the provision's meaning is not clear.

6. Section 7 refers to persons "whose only conviction(s) were due to violating state laws" pertaining to marijuana. It is not clear whether the proposal is intended to preclude relief to a person currently incarcerated for a marijuana offense but who, for example, was earlier convicted of a crime unrelated to marijuana and has long since completed serving his sentence for that crime.

7. Section 7 provides for release of persons whose "violation(s)" occurred before the proposal's effective date, and expungement of "convictions" that occurred before the proposal's effective date. It is not clear whether the proposal is intended to deny expungement to a person convicted after the proposal's effective date for conduct that occurred before the proposal's effective date.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal.

My office, in the certification of ballot titles and popular names, does not address the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure: The full text of the proposed Arkansas Hemp and Cannabis Amendment of 2018 is on file with the Office of the Attorney General. It included sections on the short title; effective date (January 1, 2019); definitions of "Hemp" (≤1% Delta-9-THC) and "Cannabis" (>1% Delta-9-THC); regulation of hemp and Cannabis for personal, industrial, or commercial use; non-violent marijuana offender release and expungement; and a conflicting-laws clause.