Why did the Arkansas AG reject Mary L. Berry's January 2017 ballot title for the Cannabis Hemp and Recreational Marijuana Amendment?

Plain-English summary

Mary L. Berry of Summit, Arkansas, submitted a proposed constitutional amendment titled the "Arkansas Cannabis Hemp and Recreational Marijuana Amendment" on January 11, 2017, two weeks after Op. Att'y Gen. 2016-138 had rejected an earlier version. AG Leslie Rutledge rejected this submission too, identifying eight specific drafting ambiguities that needed resolution before any honest ballot title could summarize the proposal.

This opinion sits in a series of rejections (Op. Att'y Gen. 2016-138, 2017-006, 2017-010, 2017-014, etc.) that walked Berry through escalating defects. Each rejection identified the issues and invited resubmission.

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.

Arkansas voters subsequently rejected a recreational-marijuana initiative (Issue 4) at the 2022 general election. Verify current Arkansas marijuana law before relying on any aspect of this 2017 analysis.

The eight specific defects the AG identified

Defect 1: Person versus business entity ambiguity. Subsections 4(a) and (b) and 5(a) and (b) limited license holders to "any person who is a resident of this state and is twenty-one (21) years of age or older." The age limit suggested natural persons, but the proposal said nothing about whether business entities could engage in the legalized activities or obtain licenses. Voters could not be told whether they were authorizing a commercial industry.

Defect 2: Regulatory scope. Sections 2 and 5 said marijuana activities "shall be regulated," but the person-versus-business-entity ambiguity made it impossible to say whether regulation reached business entities at all. The reach of the regulatory regime was undefinable.

Defect 3: Section 3(e) and 3(i) THC content ambiguity. Section 3(e) defined "marijuana" by harvested THC content above .3%. Section 3(i) defined "products produced from marijuana" both by THC content and by potential variation that "may contain" .3% or more. The two definitions made it unclear which cannabis plants and products fell into the recreational regime versus the hemp regime.

Defect 4: Subsection 5(g) penalty trigger ambiguity. The subsection imposed penalties when a person "shall be required to have a marijuana license and each plant growing must have a plant tag, [sic] failure to do so may result in" the listed penalties. The phrase "failure to do so" was unclear: did the penalty trigger require both license and plant tag failures, or either alone?

Defect 5: Subsection 6(a)(5) labeling ambiguity for edibles/drinkables. The labeling requirement for edibles and drinkables said the label must include consumption information "as necessary to prevent overdosing." It was unclear whether overdose-prevention was a wrapper around all label content or a separate disclosure category alongside "potential effects" and "directions."

Defect 6: Subsection 6(b) labeling ambiguity for smokables/vaporizables. This subsection had no overdose language. It was unclear whether overdose-prevention information was implicitly required or whether the omission meant smokables/vaporizables had no overdose risk worth labeling for.

Defect 7: Section 10(a) local sales tax disconnect. Section 10(a) of the proposal stated that recreational sales "shall not be subject to any local sales tax that exceeds two percent (2%)." Read as a cap, that did not impose any tax. The proposed ballot title summarized it as "subject to ... a local sales tax not to exceed 2%," which read as though the amendment imposed a 2% local tax. The disconnect between the proposal text (limit on local taxes that already exist) and the ballot title (imposition of a 2% tax) had to be resolved.

Defect 8: Section 12 "conflicting laws" provision. Section 12 said the proposal would supersede "conflicting statutes, local charter, ordinance, or resolution, and other state and local provisions." Read literally, the comma placement made "and other state and local provisions" a separate item, dropping the conflict requirement. That would mean the amendment supersedes non-conflicting state and local laws, an unusual and potentially sweeping result.

What the proposal would have done

Substantive features (assuming the defects were resolved):

• Adult-use legalization at age 21
• $30 marijuana license; 36-plant cap per cultivator; $6 plant tags
• $30 cannabis hemp license; unlimited $10 field tags
• Standard sales tax + 5% recreational excise tax + local sales tax up to 2% on recreational sales
• Edible labeling addressing potential effects and overdose prevention
• Driving-under-influence threshold of 13 micrograms THC per liter of blood
• Release and expungement for persons whose only convictions were marijuana-related
• Carve-outs for employer policies and DUI prohibition

Common questions

Why did the AG keep rejecting Berry's submissions?
Because each new submission either failed to fix all the prior defects or introduced new ones. The AG's certification standard requires the ballot title to summarize the proposal honestly, and that's impossible when the proposal itself is ambiguous about basic issues (who can be licensed, what THC threshold governs, what penalties apply when, what is being taxed at what rate).

What's the difference between this and Op. Att'y Gen. 2017-010?
2017-006 came first (January 24); 2017-010 was a later submission (February 10) with overlapping but not identical defects. The Section 11 federal-legislation directive that Gralike v. Cook doomed in 2017-010 / 2017-014 was not present in 2017-006.

Is the conflicting-laws ambiguity a real concern?
Yes. A literal reading of the comma placement would say the amendment supersedes any "other state and local provisions" without requiring conflict, which would be a near-unprecedented sweep of authority. The AG was right to flag the comma issue: drafting precision in conflicts clauses matters enormously.

Is "may contain" THC variation a real biology question?
Yes. THC content of cannabis plants varies by phenotype, growing conditions, harvest timing, and post-harvest handling. A single mature plant can have flowers above .3% and stalks/leaves below .3%. A definition that depends on whether components "may contain" certain THC levels reaches the entire plant under any plausible reading.

Background and statutory framework

Same framework as the other Berry / Romane / Morris ballot rejections in this series. Ark. Code Ann. § 7-9-107 implements Article 5, § 1 of the Arkansas Constitution. The AG can certify, substitute, or reject. Bailey v. McCuen and Roberts v. Priest set the standards, and Roberts prevents approval where internal inconsistencies in the proposal itself doom any honest summary.

Citations

• Ark. Code Ann. § 7-9-107 (AG ballot-title certification authority)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Lange v. Martin, 2016 Ark. 337
• Wilson v. Martin, 2016 Ark. 334
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Op. Att'y Gen. 2016-138 (predecessor Berry rejection)
• Op. Att'y Gen. 2017-010 (subsequent Mary Berry rejection)
• Op. Att'y Gen. 2017-014 (companion Jason Berry rejection)

Source

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

Original opinion text

Opinion No. 2017-006
January 24, 2017
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code
Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed
initiated measure.
At the outset, I wish to make clear to you that the decision to certify or reject
a popular name and ballot title is in no way a reflection of my view of the
merits of a particular proposal. I am· not authorized to, and do not, consider
the merits of the measure when making my determination to certify or reject
a popular name and ballot title.
The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify
the popular name and ballot title of all proposed initiative and referendum acts or
amendments before the petitions are circulated for signature. The law provides that
the Attorney General may, if practicable, substitute and certify a more suitable and
correct popular name and ballot title. Or, if the proposed popular name and ballot
title are sufficiently misleading, the Attorney General may reject the entire
petition.
Section 7-9-107 neither requires nor authorizes this office to make legal
determinations concerning the merits of the act or amendment, or concerning the
likelihood that it will accomplish its stated objective. In addition, consistent with
Arkansas Supreme Court precedent, unless the measure is "clearly contrary to
323 CENTER STREET, SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Mary L. Berry, Sponsor
Opinion No. 2017-006
Page 2
law,"1 this office will not require that a measure's proponents acknowledge in the
ballot title any possible constitutional infirmities.2 Consequently, this review has
been limited primarily to a determination, pursuant to the guidelines that have
been set forth by the Arkansas Supreme Court, discussed below, of whether the
popular name and ballot title you have submitted accurately and impartially
summarize the provisions of your proposal.
The purpose of my review and certification is to ensure that the popular name and
ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed
amendment or act. 3
REQUEST
You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of
the following popular name and ballot title for a proposed constitutional
amendment:
Popular Name
Arkansas Cannabis Hemp and Recreational Marijuana Amendment
Ballot Title
An amendment to the Arkansas Constitution concemmg the
cannabis plant, providing that the cultivation, production,
distribution, sale, possession, and use of recreational marijuana and
cannabis hemp and products produced therefrom may not be
prohibited under State law, but shall be regulated under State law;
recognizing that such activities remain unlawful under federal law;
providing for the release from incarceration, probation, or parole of
all persons whose current and only conviction(s) in which they are
1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326
Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139
(1992).
2 As part of my review, however, I may address constitutional concerns for consideration by the
measure's proponents.
3 See Arkansas Women 's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Mary L. Berry, Sponsor
Opinion No. 2017-006
Page 3
serving were of State laws pertaining to the cultivation, production,
distribution, sale, and possession of marijuana or possession of
marijuana paraphernalia, and the expungement of records relating to
such conviction(s); dividing cannabis in to [sic] cannabis hemp
(containing 0.3% or less THC) and marijuana (containing more than
0.3% THC); regulating the cultivation, production, distribution and
the sale of cannabis hemp and products produced therefrom;
providing that anyone 18 years of age or older may obtain a cannabis
hemp license permitting the person to cultivate cannabis hemp;
authorizing recreational use of marijuana; providing that anyone 21
years of age or older may obtain a marijuana license permitting the
person to cultivate, produce, and sell marijuana and products
produced therefrom for recreational purposes; providing that a
licensed person may cultivate up to 36 cannabis plants in a location
not subject to public view without optical aid; providing that sales of
recreational marijuana will be subject to existing sales taxes and an
additional 5% recreational marijuana excise tax and a local sales tax
not to exceed 2%; permitting any retail store that is 1500 feet away
or more from a public or private school, church, or daycare may sell
recreational marijuana to any person 21 years of age or older;
providing that the recreational marijuana being sold in the form of
edibles or drinkables (a)is [sic] not designed to appeal to children;
(b) shall not exceed 10 milligrams of THC per serving, and (c)
labeling or packaging must provide product information to prevent
overdosing; providing that the manufacture, possession, purchase,
sale, and distribution of marijuana paraphernalia is lawful under
State law; and providing that the amendment (a) is not intended to
require employers to permit activities relating to recreational
marijuana in the workplace, (b) is not intended to permit driving
under the influence of marijuana, ( c) is not intended to permit the
transfer of recreational marijuana to anyone under 21 years of age,
( d) nor permit anyone under 21 years of age to cultivate, produce,
sell, possess, or use recreational marijuana.
RESPONSE
The popular name is primarily a useful legislative device. 4 It need not contain
detailed information or include exceptions that might be required of a ballot title,
4 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). Mary L. Berry, Sponsor
Opinion No. 2017-006
Page 4
but it must not be misleading or give partisan coloring to the merit of the
proposal. 5 The popular name is to be considered together with the ballot title in
determining the ballot title's sufficiency.6
The ballot title must include an impartial summary of the proposed amendment or
act that will give the voter a fair understanding of the issues presented. 7 According
to the Court, a ballot title will not be legally sufficient unless it "adequately
inform[ s ]" the voters of the contents of a proposed amendment or act so that they
can make a "reasoned decision in the voting booth."8 A ballot title's failure to
"honestly and accurately reflect what is contained in the proposed [act or]
Amendment" may lead the Court to conclude that the "omission is significant."9
The Court has also disapproved the use of terms that are "technical and not readily
understood by voters."10 Without a definition of such terms in the ballot title, the
title may be deemed insufficient. 11
Additionally, if information omitted from the ballot title is an "essential fact which
would give the voter serious ground for reflection, it must be disclosed."12 At the
same time, however, a ballot title must be brief and concise; 13 otherwise voters
could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths
when other voters are waiting in line. 14 The ballot title is not required to be perfect,
nor is it reasonable to expect the title to cover or anticipate every possible legal
5 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229
Ark. 411, 3 16 S. W.2d 207 ( 1958). For a better understanding of the term "partisan coloring," see
note 16 infra.
6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).
7 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980) (internal citations omitted).
8 Lange v. Martin, 2016 Ark. 337, 9, at n. 2.
9 Id. at 9.
10 Wilson v. Martin, 2016 Ark. 334, *9.
11 Id.
12 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994).
13 See Ark. Code Ann. § 7-9-107(b).
14 Bailey at 284, 884 S.W.2d at 944. Mary L. Berry, Sponsor
Opinion No. 2017-006
Page 5
argument the proposed measure might evoke.15 The title, however, must be "free
of any misleading tendency whether by amplification, omission, or fallacy, and it
must not be tinged with partisan coloring."16 The ballot title must be honest and
impartial, 17 and it must convey an intelligible idea of the scope and significance of
a proposed change in the law. 18
Furthermore, the Court has confirmed that a proposed measure cannot be approved
if the text of the proposal itself contributes to confusion and disconnect between
the language in the popular name and the ballot title and the language in the
proposed measure.19 The Court concluded that "internal inconsistencies would
inevitably lead to confusion in drafting a popular name and ballot title and to
confusion in the ballot title itself. "20 Wh re the effects of a proposed measure on
current law are unclear or ambiguous, it is impossible for me to perform my
statutory duty to the satisfaction of the Arkansas Supreme Court without ( 1)
clarification or removal of the ambiguities in the proposal itself, and (2)
conformance of the popular name and ballot title to the newly worded proposal.
It is my opinion, based on the above precepts, that a number of additions or
changes to your ballot title are necessary in order to more fully and correctly
summarize your proposal. I cannot, however, at this time, fairly or completely
summarize the effect of your proposed measure to the electorate in a popular name
or ballot title without the resolution of the ambiguities in the text of the measure
itself. And thus I cannot determine precisely what changes to the ballot title are
necessary to fully and correctly summarize your proposal. It is therefore not
appropriate, in my opinion, for me to try to substitute and certify a more suitable
15 Id. at 293, 844 S.W.2d at 946-47.
16 Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by
the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v.
Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the
impression that the proponents of the proposed amendment wish to convey of the activity
represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884
S.W.2d 605, 610 (1994)).
17 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).
18 Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations
omitted).
19 Cf Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000).
20 Id. Mary L. Berry, Sponsor
Opinion No. 2017-006
Page 6
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 5 initially states that "[t]he cultivation, production, distribution,
   sale, possession, and use of marijuana and products produced from
   marijuana for recreational purposes shall be lawful in every geographic area
   of every county of this state under Arkansas law, and shall be regulated by
   the state .... " Subsections (a) and (b) then address the issuance of a
   "marijuana license" and "marijuana plant tag," and provide that "any
   person who is a resident of this state and is twenty-one (21) years of age or
   older" qualifies to obtain the license and plant tag. Although "person" is
   not defined, it seems clear from the "21 years of age" limit that it means a
   natural person, i.e., an individual human being. There is no express
   requirement, however, that a non-natural person, e.g., a business entity,
   must be licensed in order to engage in the marijuana-related activities that
   would be legalized under your proposed constitutional amendment. It is
   also unclear whether a non-natural person could be licensed pursuant to the
   amendment, or whether, by referring only to a natural person, the proposed
   amendment prohibits business entities and other non-natural persons from
   consideration for a license.
   The proposal's position on these issues is undoubtedly a significant matter
   for voters' consideration. Without clarification regarding what, if any,
   requirements or opportunities apply to non-natural persons in connection
   with the "cultivation, distribution, sale, [etc.]," this significant point cannot
   be accurately summarized for voters in a ballot title.
2. An ambiguity related to the above point involves the state's regulatory
   authority. Sections 2 and 5 state that the activities with respect to
   marijuana "shall be regulated." But given the uncertainty above regarding
   the amendment's application to non-natural persons, it is unclear to what
   extent the state's regulatory authority extends to such entities under your
   proposal.
3. Section 3 defines "marijuana" and "marijuana products,'' respectively, as
   follows: Mary L. Berry, Sponsor
   Opinion No. 2017-006
   Page 7
   ( e) "Marijuana" means any part of the cannabis plant
   ... containing greater than [.3% THC] .... [Emphasis
   added.]
   (i) "Products produced" means items and substances
   manufactured from the cannabis plant . . . that may
   contain [THC], whereas products produced from
   marijuana contain greater than [.3% THC], and
   products produced from cannabis hemp contain [.3%]
   or less [THC]. Any item whose components may
   contain a variation in [THC] content that would span
   above the [.3%] threshold is to be considered a product
   produced from marijuana. [Emphasis added.]
   It is unclear which parts of, and which products derived from, a cannabis
   plant meet the definition of "marijuana,'' such that they would be subject to
   regulation for recreational purposes. Subsection 3( e) defines regulated
   "marijuana" as only that part of a cannabis plant that contains .3% or more
   of THC. This definition would lead a reasonable voter to believe that any
   part of a cannabis plant containing less than .3% of THC is not subject to
   the measure's recreational-use regulations.
   However, the proposed amendment goes on to define marijuana-related
   "products" in such a way that confuses the significance of the products'
   THC content. A generic "product produced" is a product derived from a
   cannabis plant that may contain Delta-9 THC at any concentration. A
   specific "product produced from marijuana" must contain .3% THC content
   or greater-and would for this reason be regulated. But "any item whose
   components may contain" .3% of THC or greater falls within the definition
   of "marijuana product." Presumably, items that "may contain" the
   threshold amount of THC are subject to the regulations for recreational use.
   Based on these definitions, it would be unclear to a voter which marijuana
   products are to be regulated as recreational, and which products (such as
   cannabis hemp) are not. For example, a cultivator growing a cannabis plant
   in order to produce hemp might believe the plant need not comply with the
   recreational-use regulations because it does not contain .3% or more of
   THC. But the same cultivator might believe the hemp plant is subject to
   recreational-use regulations as a cannabis "item whose components may
   contain" .3% of THC content or greater. Whether the proposed amendment
   would limit this cultivator to a certain number of $6.00 plant tags (as a
   grower of marijuana for recreational use) or whether the cultivator could Mary L. Berry, Sponsor
   Opinion No. 2017-006
   Page 8
   obtain an unlimited number of $10.00 field tags (as a grower of cannabis
   for non-recreational use) is unclear.
4. Subsection 5(g) is ambiguous regarding the penalties that may be imposed
   on a person who "cultivates, produces, and/or sells recreational marijuana."
   The subsection provides that any such person "shall be required to have a
   marijuana license and each plant growing must have a plant tag, [sic]
   failure to do so may result in" the stated penalties. The phrase "failure to
   do so" is ambiguous because it is unclear whether this refers to the person's
   failure to obtain a license or the failure of a plant to have a plant tag. As a
   result, it is unclear and ambiguous whether the failure of one or more of the
   conditions would subject a person to the prescribed penalties.
5. Subsection 6(a)(5) states that "edible or drinkable products containing
   marijuana" shall:
   . . . provide information on the packaging or label to
   enable the informed consumption of such product,
   including the potential effects of such product, and
   directions as to how to consume the product, as
   necessary to prevent overdosing.
   It is unclear what the labeling requirement for edible/drinkable products
   entails. The subsection seems to apply one labeling requirement to two
   types of disclosures. On the one hand, a reasonable voter could read the
   clause "as necessary to prevent overdosing" to govern the entire
   subsection-meaning that all information on the label might need to
   address the risk of an overdose through improper consumption. On the
   other hand, the subsection might suggest that the label must include both
   overdose-specific information and information disclosing "potential
   effects" of consumption short of accidental overdose.
6. There is also an ambiguity under subsection, 6(b), which applies to the
   packaging and labeling of "smokable or vaporizable products." This
   subsection requires a label that "provide[s] information ... to enable the
   informed consumption of such product, including ... potential effects of the
   product, and directions as to how to consume the product." There is no
   reference here to the potential for overdosing. But a reasonable voter may
   nevertheless be uncertain whether the labeling standards for
   smokable/vaporizable products encompass information meant to prevent
   overdoses, as with the standards for edible/drinkable products. On the
   other hand, one might infer from the absence of "overdosing" language in Mary L. Berry, Sponsor
   Opinion No. 2017-006
   Page 9
   subsection 6(b) that there is no appreciable risk of overdose as the result of
   smoking or vaporizing marijuana products. In any event, however, the
   import of the labeling requirements is unclear and the ambiguity must be
   clarified so that this aspect of the proposed amendment can be properly
   summarized in a ballot title.
7. Section I O(a) states in part that "[t]he sale of recreational marijuana shall
   not be subject to any local sales tax that exceeds two percent (2% ). " Your
   proposed ballot title summarizes this provision by stating that "sales of
   recreational marijuana will be subject to ... a local sales tax not to exceed
   2%." (Emphasis added). This ballot title language indicates that if voters
   approve the amendment, local sales taxes that are set at or below 2% will
   apply to recreational marijuana sales. This is difficult to reconcile with the
   actual text of section IO(a), which might be read as only imposing a local
   sales tax limit. This possible disconnect between the text of your proposed
   measure and your proposed ballot title must be clarified for proper
   reflection in the ballot title.
8. Section 12, regarding "conflicting laws," states that the proposal wi 11
   supersede "conflicting statutes, local charter, ordinance, or resolution, and
   other state and focal provisions." (Emphasis added). Read literally, this
   dispenses with the requirement that other "provisions" conflict with your
   proposed amendment in order to be superseded. This non-standard
   conflicts language is of uncertain meaning and impossible to summarize in
   a ballot title without clarification.
   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 1s
   embodied only in Ark. Code Ann.§ 7-9-107, and my duty is to the electorate. Mary L. Berry, Sponsor
   Opinion No. 2017-006
   Page 10
   Based on what has been submitted, my statutory duty is to reject your proposed
   ballot title for the foregoing reasons and instruct you to redesign the proposed
   measure and ballot title.21 You may resubmit your proposed act along with a
   proposed popular name and ballot title at your convenience.
   Sincerely,
   ~/P__
   LESLIE R~TI~~
   Attorney General
   Enclosure
   21 Ark. Code Ann.§ 7-9-107(c). ARKANSAS CANNABIS HEMP AND RECREATIONAL MARIJUANA AMENDMENT
   (Popular Name)
   (Ballot Title)
   AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT,
   PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE
   OF RECREATIONAL MARIJUANA AND CANNABIS HEMP AND PRODUCTS PRODUCED THEREFROM
   MAY NOT BE PROHIBITED UNDER STATE LAW, BUT SHALL BE REGULATED UNDER STATE LAW;
   RECOGNIZING THAT SUCH ACTIVITIES REMAIN UNLAWFUL UNDER FEDERAL LAW; PROVIDING FOR
   THE RELEASE FROM INCARCERATION, PROBATION, OR PAROLE OF ALL PERSONS WHOSE
   CURRENT AND ONLY CONVICTION($) IN WHICH THEY ARE SERVING WERE OF STATE LAWS
   PERTAINING TO THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, AND POSSESSION OF
   MARIJUANA OR POSSESSION OF MARIJUANA PARAPHERNALIA, AND THE EXPUNGEMENT OF
   RECORDS RELATING TO SUCH CONVICTION(S); DIVIDING CANNABIS IN TO CANNABIS HEMP
   (CONTAINING 0.3% OR LESS THC) AND MARIJUANA (CONTAINING MORE THAN 0.3% THC);
   REGULA TING THE CULTIVATION, PRODUCTION, DISTRIBUTION AND THE SALE OF CANNABIS HEMP
   AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT ANYONE 18 YEARS OF AGE OR
   OLDER MAY OBTAIN A CANNABIS HEMP LICENSE PERMITTING THE PERSON TO CULTIVATE
   CANNABIS HEMP; AUTHORIZING RECREATIONAL USE OF MARIJUANA; PROVIDING THAT ANYONE
   21 YEARS OF AGE OR OLDER MAY OBTAIN A MARIJUANA LICENSE PERMITTING THE PERSON TO
   CULTIVATE, PRODUCE, AND SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR
   RECREATIONAL PURPOSES; PROVIDING THAT A LICENSED PERSON MAY CULTIVATE UP TO 36
   CANNABIS PLANTS IN A LOCATION NOT SUBJECT TO PUBLIC VIEW WITHOUT OPTICAL AID;
   PROVIDING THAT SALES OF RECREATIONAL MARIJUANA WILL BE SUBJECT TO EXISTING SALES
   TAXES AND AN ADDITIONAL 5% RECREATIONAL MARIJUANA EXCISE TAX AND A LOCAL SALES
   TAX NOT TO EXCEED 2%; PERMITTING ANY RETAIL STORE THAT IS 1500 FEET AWAY OR MORE
   FROM A PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL RECREATIONAL
   MARIJUANA TO ANY PERSON 21 YEARS OF AGE OR OLDER; PROVIDING THAT THE RECREATIONAL
   MARIJUANA BEING SOLD IN THE FORM OF EDIBLES OR DRINKABLES (A)IS NOT DESIGNED TO
   APPEAL TO CHILDREN; (B) SHALL NOT EXCEED 10 MILLIGRAMS OF THC PER SERVING, AND (C)
   LABELING OR PACKAGING MUST PROVIDE PRODUCT INFORMATION TO PREVENT OVERDOSING;
   PROVIDING THAT THE MANUFACTURE, POSSESSION, PURCHASE, SALE, AND DISTRIBUTION OF
   MARIJUANA PARAPHERNALIA IS LAWFUL UNDER STATE LAW; AND PROVIDING THAT THE
   AMENDMENT (A) IS NOT INTENDED TO REQUIRE EMPLOYERS TO PERMIT ACTIVITIES RELATING TO
   RECREATIONAL MARIJUANA IN THE WORKPLACE, (B) IS NOT INTENDED TO PERMIT DRIVING
   UNDER THE INFLUENCE OF MARIJUANA, (C) IS NOT INTENDED TO PERMIT THE TRANSFER OF
   RECREATIONAL MARIJUANA TO ANYONE UNDER 21 YEARS OF AGE, {D) NOR PERMIT ANYONE
   UNDER 21 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, POSSESS, OR USE RECREATIONAL
   MARIJUANA.
   Section 1. Short Title.
   /
   This is an amendment to the Arkansas Constitution that shall be called "The Arkansas Cannabis Hemp and
   Recreational Marijuana Amendment"
   Section 2. Effective Date.
   Effective on and after December 07, 2018 the cultivation, production, distribution, sale, possession, and use of
   the cannabis plant (genus Cannabis) as it pertains to cannabis hemp and recreational marijuana and the products produced therefrom shall be regulated pursuant to the provision of this amendment and made lawful
   in. every geographic area of every county of this state under Arkansas law, but acknowledging that the listed
   activities with respect to the cannabis plant remain illegal under federal law and that the amendment shall have
   no effect on federal law.
   Section 3. Definitions.
   The following terms are defined for the purposes of this amendment:
   (a) "Cannabis hemp" means any part of the cannabis plant (genus Cannabis), living or not, containing three
   tenths of one percent (0.3%) or less, by dry weight, Delta-9-tetrahydrocannabinol (A9THC).
   (b) "Cannabis hemp field tag or field tag" means a label issued by the state that a cultivator attaches to any
   post or fencing where cannabis hemp is being grown, and is used for identifying ten (10) acres or less of
   cannabis hemp plants. Each field tag shall display the cannabis hemp license account number and an
   expiration date that corresponds with the cultivator's cannabis hemp license. Each field tag may be bar-coded
   or embedded with radio frequency identification (RFID) smart chip.
   (c) "Cannabis hemp license" means a registration card issued by the state to a person who is a resident of the
   state and is eighteen (18) years of age or older to lawfully cultivate, produce and sell cannabis hemp and
   products produced from cannabis hemp that is cultivated in this state. Each license shall display a license
   account number, an expiration date, and the photo, name, date of birth, and current address of the holder.
   (d) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road,
   highway, or street when the Delta-9-tetrahydrocannabinol (A9THC) content of the operator's blood exceeds
   thirteen micrograms per liter (13µg/L).
   (e) "Marijuana" means any part of the cannabis plant (genus Cannabis), living or not, containing greater than
   three tenths of one percent (0.3%), by dry weight, Delta-9-tetrahydrocannabinol (A9THC).
   (f) "Marijuana license" means a registration card issued by the state to a person who is a resident of the state
   and is twenty-one (21) years of age or older to lawfully cultivate, produce, and sell marijuana and products
   produced from marijuana for recreational purposes. Each license shall display a license account number, an
   expiration date, and the photo, name, date of birth, and current address of the holder.
   (g) "Marijuana paraphernalia" means any equipment, utensils, products, and materials which are used,
   intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing,
   compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging,
   containing, or concealing recreational marijuana, or for ingesting, inhaling or otherwise introducing recreational
   marijuana into the human body.
   (h) "Marijuana plant tag or plant tag" means a label issued by the state that the cultivator attaches to the base
   or branch of a growing marijuana plant. Such a label may be bar-coded or be embedded with a radio frequency
   identification (RFID) smart chip. Each tag shall display the marijuana license account number and an expiration
   date that corresponds with the cultivator's marijuana license.
   (i) "Products produced" means items and substances manufactured from the cannabis plant (genus Cannabis)
   that may contain Delta-9-tetrahydrocannabinol {A9THC), whereas products produced from marijuana contain
   greater than three tenths of one percent (0.3%) Delta-9-tetrahydrocannabinol {A9THC) and products produced
   from cannabis hemp contain three tenths of one percent (0.3%) or less A9THC. Any item whose components
   may contain a variation in A9THC content that would span above the three tenths of one percent (0.3%)
   threshold is to be considered a product produced from marijuana.
   (j) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an
   intoxicant.
   (k)"Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational
   marijuana.
   (I) "Remuneration" means an act in which money is being paid to purchase recreational marijuana. Section 4. The regulation of cannabis hemp.
   The cultivation, production, distribution, sale, possession, and use of cannabis hemp and products produced
   from cannabis hemp shall be lawful in every geographic area of every county of this state under Arkansas law,
   and shall be regulated by the state, and such regulations shall include the following provisions, but do not
   preclude the imposition of additional rules, regulations, and penalties that the state may adopt and impose.
   (a) The cost of a cannabis hemp license that shall be issued and required by the state shall not exceed thirty
   dollars ($30.00) a year, and there shall be no limit to the number of licenses issued in this state, and any
   person who is a resident of this state, and is eighteen years of age or older shall qualify to obtain such a
   license, providing that he or she has not had such a license permanently revoked by the state for violating the
   provisions pursuant to this amendment.
   (b) The cost of a cannabis hemp field tag that shall be issued and required by the state to regulate the
   cultivation of cannabis hemp shall not exceed ten dollars ($10.00) per field tag per year, and any person with a
   cannabis hemp license as defined in Section 3(c) may obtain such field tags, and there shall be no limit to the
   number of field tags allowed per licensed person per year.
   (C) Any person issued an cannabis hemp license and field tag(s) may cultivate cannabis hemp on property he
   or she owns, or with the consent of the person(s) who owns the property.
   (d) Any person who cultivates cannabis hemp and manufactures a product produced from cannabis hemp that
   is grown in Arkansas shall be required to have a cannabis hemp license and all cannabis hemp fields must
   have field tags failure to do so may result in the following:
   (1.) First offense: Upon conviction is guilty of a Class C misdemeanor, a penalty no greater than
   five-hundred dollars ($500) shall be imposed, up to thirty (30) days in jail, and a suspension to obtain a
   cannabis hemp license for one year.
   (2.) Second offense: Upon conviction is guilty of a Class C misdemeanor, a penalty no greater than
   five-hundred dollars ($500) shall be imposed, up to thirty (30) days in jail, and a suspension to obtain a
   cannabis hemp license for five years.
   (3.) Third offense: upon conviction is guilty of a Class B misdemeanor, a penalty no greater than
   one-thousand dollars ($1,000) shall be imposed, and up to ninety (90) days in jail, and a permanent revocation
   of a cannabis hemp license.
   Section 5. The regulation of recreational marijuana.
   The cultivation, production, distribution, sale, possession, and use of marijuana and products produced from
   marijuana for recreational purposes shall be lawful in every geographic area of every county of this state under
   Arkansas law, and shall be regulated by the state, and such regulations shall include the following provisions,
   but do not preclude the imposition of additional rules, regulations, and penalties that the state may adopt and
   impose:
   (a) The cost of a marijuana license that shall be issued and required by the state shall not exceed thirty dollars
   ($30.00) per license per year, and there shall be no limit to the number of licenses issued in this state, and any
   person who is a resident of this state and is twenty-one (21) years of age or older shall qualify to obtain such a
   license, providing that he or she has not had such a license permanently revoked by the state for violating the
   provision pursuant to this amendment.
   (b) The cost of a marijuana plant tag that shall be issued and required by the state to regulate the cultivation of
   recreational marijuana produced in this state, shall not exceed six dollars ($6.00) per plant tag, and any person
   who has a marijuana license as defined in Section 3(f) shall qualify to obtain such tags, and there shall be a
   limit of thirty-six (36) plant tags allowed per year per licensed person. Marijuana plant tags may be purchased
   in any quantity, but not to exceed thirty-six (36) tags per licensed person per year.
   (c) The quantity of marijuana plants cultivated and displaying a marijuana plant tag shall be limited to thirty-six
   (36) growing plants per person who has a marijuana license, but the quantity of the products produced from
   marijuana shall not be limited. (d) Any person who is issued a marijuana license and plant tag(s) may cultivate marijuana in a location where
   the plant(s) is (are) not subject to public view without the use of binoculars, aircraft, or other optical aids on
   property he or she owns, or with the consent of the person(s) who owns the property.
   (e) Any person who is twenty-one (21) years of age or older may purchase, possess, and use recreational
   marijuana, and may distribute recreational marijuana without remuneration to another person who is
   twenty-one (21) years of age or older.
   (f) Any retail store whose owner(s) and employee(s) all have marijuana license(s) as defined in section 3(f)
   may sell recreational marijuana to any person who is twenty-one years of age or older providing:
   (1) All buyers of recreational marijuana must first show proof of age with a valid driver's license or valid
   state identification card prior to the purchase.
   (2) The retail store where recreational marijuana is being sold is not located within one thousand five
   hundred feet (1,500') of a public or private school, church, or daycare center, and; ·
   (3) All recreational marijuana being sold is designed, packaged, and labeled pursuant to section 6 of
   this amendment.
   (g) Any person who purchases and possesses recreational marijuana must be twenty-one (21) years of age or
   older, and any person who cultivates, produces, and/or sells recreational marijuana in Arkansas shall be
   required to have a marijuana license and each plant growing must have a plant tag, failure to do so may result
   in the following:
   (1.) First offense: upon convictioljl is guilty of a Class C misdemeanor, a penalty not greater than
   five-hundred dollars ($500) shall be imposed, up to thirty 30 days in jail, and a suspension to obtain a
   marijuana license for one year.
   (2.) Second offense: upon conviction is guilty of a Class B misdemeanor, a penalty of one-thousand
   dollars ($1,000) shall be imposed, up to ninety days (90) days in jail, and a suspension to obtain a marijuana
   license for five years.
   (3.) Third offense: upon conviction is guilty of a Class B misdemeanor, a penalty not greater than one
   thousand dollars ($1,000) shall be imposed, up to ninety (90) days in jail, and a permanent revocation of a
   marijuana license.
   Section 6. Recreational marijuana product design, serving size, labeling and packaging.
   (a) Edible or drinkable products produced containing marijuana that are sold for recreational purposes shall;
   (1) Shall not be designed to be appealing to children or easily confused with commercially sold candy
   or foods that do not contain marijuana.
   (2) Shall be produced and sold with a standardized dosage not to exceed ten (10) milligrams of
   delta-9-tetrahydrocannabinol (l19THC) 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 (l19THC)
   throughout the product.
   (5) Shall provide information on the packaging or label to enable the informed consumption of such
   product, including the potential effects of the product, and directions as to how to consume the product, as
   necessary to prevent overdosing.
   (b) Smokable or Vaporizable products produced containing marijuana that are sold for recreational purposes
   shall;
   (1) Shall provide information on the packaging or label to enable the informed consumption of such
   product, including the delta-9-tetrahydrocannabinol (l19THC) content, potential effects of the product, and
   directions as to how to consume the product. Section 7. Marijuana paraphernalia authorized.
   Notwithstanding any other provision of law, the following acts regarding marijuana paraphernalia shall not be
   an offense under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to The Uniform
   Controlled Substances Act §5-64-505:
   (a) Any person twenty-one (21) years of age or older may manufacture, possess, and purchase marijuana
   paraphernalia, or may sell marijuana paraphernalia to another person who is twenty-one years of age or older,
   providing that marijuana paraphernalia being sold does not contain recreational marijuana, unless the seller of
   such paraphernalia has a marijuana license.
   Section 8. Employers, driving, and minors.
   (a) Nothing in this amendment is intended to require an employer to permit or accommodate the cultivation,
   production, distribution, sale, possession, or use of recreational marijuana in the workplace or to affect the
   ability of employers to have policies restricting the use of recreational marijuana by employees.
   (b) Nothing in this amendment is intended to permit driving under the influence of marijuana.
   (c) Nothing in this amendment is intended to permit the transfer of recreational marijuana, with or without
   remuneration, to a person under the age of twenty-one (21 ).
   ( d) Nothing in this amendment is intended to permit a person under the age of twenty-one (21) to cultivate,
   produce, sell, possess, or use recreational marijuana.
   (e) Nothing in this amendment is intended to permit the unauthorized cultivation, production, distribution, or
   sale, of any substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled
   Substances Act.
   Section 9. Non-violent marijuana offenders and criminal record expungement.
   All persons currently serving incarceration, probation, or parole in this state, whose current and only
   conviction(s) to which they are now serving were due to violating state laws as they pertain to the cultivation,
   production, distribution, sale, and possession of marijuana, and or possession of marijuana paraphernalia, and
   whose violation(s) occurred prior to the effective date of this amendment shall be released, and all criminal
   records in this state shall be expunged of such convictions that occurred prior to the effective date of this
   amendment.
   Section 10. Taxation and distribution of proceeds from the sale of recreational marijuana and cannabis
   hemp.
   (a) The sale of recreational marijuana is subject to the State Sales and Use Tax, and an additional five percent
   (5%) recreational marijuana excise tax shall be imposed upon the purchase. The sale of recreational marijuana
   shall not be subject to any local sales tax that exceeds two percent (2%).
   (b) The sale of cannabis hemp cultivated in Arkansas is subject to the State Sales and Use Tax, and no
   additional tax shall be imposed upon the purchase. The sales tax that are currently imposed upon the sale of
   products produced from cannabis hemp shall not be affected by this amendment.
   (c) The distribution of tax revenues received by the Department of Finance and Administration from the sale of
   recreational marijuana and cannabis hemp under this amendment may be determined by the general
   assembly.
   Section 11. Conflicting Laws.
   The provisions of this amendment are independent and severable, and, except where otherwise indicated in
   the text, shall supersede conflicting statutes, local charter, ordinance, or resolution, and other state and local
   provisions. If any provision of this amendment, or the application thereof to any person or circumstance, is found to be invalid or unconstitutional, the remainder of this amendment shall not be affected and shall be
   given effect to the fullest extent possible.