Why did the Arkansas AG reject Mary L. Berry's 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" for AG certification of its popular name and ballot title. AG Leslie Rutledge rejected the submission and explained two specific drafting problems Berry would have to fix before resubmitting.

The opinion also flagged an unusual procedural issue: a near-identical submission from Jason D. Berry (Mr. Berry's request was at the same Summit, AR P.O. Box 511 address) had arrived ten days earlier on January 31, 2017. The two amendments differed by only one paragraph (Section 11 in Mr. Berry's submission). The AG warned that certifying two substantively identical petitions on the same ballot would inevitably mislead voters and urged the sponsors to consolidate.

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 two specific defects the AG identified

Defect 1: Section 3(i)'s THC-content ambiguity. Section 3(i) defined "products produced from marijuana" as items containing more than .3% THC, and "products produced from cannabis hemp" as items containing .3% THC or less. But it also added that "any item whose components may contain a variation in [THC] content that would span above the three tenths of one percent (.3%) threshold is to be considered a product produced from marijuana."

That sweep would put items that "may contain" more than .3% THC into the recreational regime. The AG asked: where does that leave a hemp cultivator harvesting a mature cannabis plant? The plant might fall under the hemp side of the binary if its harvested THC is below .3%, or it might fall under the marijuana side because its THC content might "vary." The amendment's licensing scheme depended on which side the plant fell on (36 plant tags at $6 each for marijuana versus unlimited $10 field tags for hemp). The AG concluded a ballot title could not honestly summarize the regulatory effect when the underlying definition was ambiguous.

Defect 2: Section 11's directive to Arkansas's Congressional delegation. Section 11 ("Federal Legislative Action") said:

[I]t is to be the responsibility of the United States Senators and Representatives of Arkansas to actively pursue and support federal legislation that will assure the equal protection of our citizens from federal prosecution and asset forfeitures, and secure any and all other rights and privileges that Arkansans would otherwise enjoy ... with no exclusion based solely on a citizen's participation in recreational marijuana and cannabis hemp production and use.

The AG cited Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999), aff'd, 531 U.S. 510 (2001), where the Eighth Circuit and U.S. Supreme Court struck down a Missouri constitutional amendment that purported to direct Missouri's Congressional delegation to pursue a federal term-limits amendment. The AG concluded that an Arkansas constitutional amendment "purporting to supervise duly elected Congressional officials in this manner would likely be unconstitutional," and any ballot title premised on Section 11 would be inherently misleading.

What the proposal would have done

For policy researchers, the substantive features of Berry's 2017 version included:

• 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
• 1,500-foot setback from public/private schools, churches, and daycare centers
• Edible standards: not appealing to children, 10mg THC per serving, scored if multi-serving solid form, homogenized, labeled
• Existing sales tax + 5% recreational excise tax + 2% local sales tax on recreational sales
• 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

What the AG could not do

The AG explained the limits on her substitute-and-certify power. Where the underlying proposal contains ambiguities, the AG cannot rewrite the proposal itself; she can only substitute a more accurate ballot title. The AG also noted that Roberts v. Priest, 341 Ark. 813 (2000), bars the AG from approving a measure where "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself."

Common questions

Why did the AG mention the parallel Jason D. Berry submission?
Because the AG was being asked to certify two petitions that differed by only one paragraph (the "plant tags / field tags" Section 11 in Mr. Berry's submission). If both got certified, voters would face two effectively identical proposals on the ballot, with no way for the AG's ballot titles to distinguish them honestly. The AG urged the sponsors to consolidate.

What is Gralike v. Cook?
A 1999 Eighth Circuit decision (affirmed unanimously by the U.S. Supreme Court in 2001) that struck down a Missouri ballot measure ordering Missouri's Congressional delegation to vote for a federal term-limits amendment. The Court held the measure exceeded the state's constitutional power and improperly tried to bind federal officeholders to state-mandated political positions. Any state amendment that tries to direct its members of Congress runs into the same problem.

Could the sponsor fix Section 3(i)?
Yes, by clarifying which test (harvested THC content versus potential variation) determines the regulatory bucket. The AG flagged the issue specifically as a roadmap for redrafting.

Could the sponsor just delete Section 11?
That would address one of the two defects. The amendment's federal-legislation directive added nothing legally enforceable anyway: an Arkansas constitutional provision cannot bind U.S. Senators or Representatives. Deletion would leave the AG only the Section 3(i) ambiguity to resolve.

Is this the same Berry who submitted later versions?
Yes. Mary L. Berry resubmitted similar Cannabis Hemp / True Grass amendments multiple times in 2017 and 2018 (e.g., Op. Att'y Gen. 2017-127, 2017-135, 2018-005, 2018-016). Each rejection added or removed defects that prior rejections identified.

Background and statutory framework

Ark. Code Ann. § 7-9-107 implements Article 5, § 1 of the Arkansas Constitution (the initiative/referendum provision via Amendment 7). The AG has three options on review: certify the popular name and ballot title as submitted; substitute a more suitable name and title; or reject the entire petition if the submission is sufficiently misleading.

The Arkansas Supreme Court has set out detailed standards for evaluating ballot titles. They must "honestly, intelligibly, and fairly" set out the proposal's purpose. They must give voters a "fair understanding" of the issues, allow a "reasoned decision in the voting booth," avoid "technical" terms not readily understood, and disclose "essential facts" that would give the voter "serious ground for reflection." They cannot be "tinged with partisan coloring." The five-minute voting-booth limit in Ark. Code Ann. § 7-5-309 forces brevity. Bailey v. McCuen, 318 Ark. 277 (1994), and Roberts v. Priest, 341 Ark. 813 (2000), are the workhorse standards the AG applied here.

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)
• Lange v. Martin, 2016 Ark. 337
• Wilson v. Martin, 2016 Ark. 334
• Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999), aff'd 531 U.S. 510 (2001)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)

Source

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

Original opinion text

Opinion No. 2017-010
February 10, 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.
Please note that I received another request for review of a proposed recreational-
marijuana amendment from Jason D. Berry. Mr. Berry's request arrived via email
on January 31, 2017, and I will respond to it under separate cover. However, the
return address Mr. Berry provided is the same as yours: P.O. Box 511, Summit,
AR 72677. And a review of the proposed amendment enclosed by Mr. Berry
demonstrates that it is identical to yours, but for one paragraph (labeled "Section

11. Marijuana licenses, plant tags, cannabis hemp licenses, and field tags") in his
    submission.
    I mention the near-total similarities between Mr. Berry's proposed amendment and
    yours because I have grave concerns about the potential for certifying two or more
    petitions that are identical in all substantive respects. Given my statutory duty to
    ensure that initiated petitions do not have ballot titles or popular names that are
    misleading to voters, I believe that certifying identical measures would
    unavoidably lead to confusion. If there is no difference in the measures
    323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARKANSAS 72201
    TELEPHONE (501) 682-2007 · FAX (501) 682-8084
    ARKAN SAS AG .GOV Mary Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 2
    themselves, their ballot titles and popular names would be no different-and I
    could not substitute a title for one measure that would distinguish it from the other
    measure on the same ballot. Nor could I ensure that each of the identical ballot
    titles, as summaries of the language in the proposed amendments, effectively
    apprise the voters of potential changes to existing law.
    For these reasons, and because you and Mr. Berry appear to be in communication,
    I urge you to consolidate future submissions. Of course, I will review any
    proposed measures sent to my office for certification. But if I determine that a
    measure is substantively identical to a measure I have already reviewed, I may be
    constrained to respond to the later submission solely by reference to the earlier
    proposal.
    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
    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.
    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. Mary Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 3
    The purpose of my review and certification is to ensure that the popular name and
    ballot title honest!~, intelligibly, and fairly set forth the purpose of the proposed
    amendment or act.
    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 concernmg 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
    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 a business and anyone 21 years of age or older may
    obtain a cannabis hemp license permitting the business or person to
    cultivate cannabis hemp; authorizing recreational use of marijuana;
    providing that a business and anyone 21 years of age or older may
    obtain a marijuana license permitting the business or person to
    cultivate, produce, and sell marijuana and products produced
    3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). Mary Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 4
    therefrom for recreational purposes; providing that a licensed person
    or business may cultivate up to 36 marijuana 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
    of 2%; permitting any business 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
    owner(s) of the business and any and all employees have a marijuana
    license, and 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 TCH per service, and ( c)
    labeling or packaging must provide product information; providing
    that the manufacture, possession, purchase, sale, and distribution of
    marijuana paraphernalia is lawful under State law; 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,
    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
    4 Paffordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950).
    5 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229
    Ark. 411, 316 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). Mary Lou Berry, Sponsor
    Opinion No. 2017-0 I 0
    Page 5
    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 disa~proved the use of terms that are "technical and not readily
    understood by voters." 1 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
    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
    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.
    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)). Mary Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 6
    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 Where 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
    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.
12. Section 3(i) defines "products produced from marijuana" as
    products of the cannabis plant that "contain greater than [.3%
    THC]." "Products produced from cannabis hemp," on the other
    hand, "contain [.3% THC] or less." Section 3(i) also states that "any
    items that may contain a variation in [THC] content that would span
    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 Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 7
    above the three tenths of one percent (.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 "product produced from marijuana," such that they would
    be subject to regulation for recreational purposes. Section 3(e) defines regulated
    "marijuana" as only that part of a cannabis plant that contains more than .3% THC
    "when harvested in its mature plant stage." A reasonable voter would probably
    conclude that any part of a mature cannabis plant containing less than .3% THC
    when harvested is not subject to recreational-use regulations. That interpretation
    is consistent with Section 3(a), which defines "cannabis hemp" as "any part of the
    cannabis plant" that when "harvested in its mature plant stage contains [.3% THC]
    or less." Based on these definitions, it appears that products produced from
    marijuana (containing more than .3% THC) are regulated as recreational, whereas
    products produced from cannabis hemp (containing .3% THC or less) fall under a
    separate regulatory scheme. This binary distinction based on THC content is
    reflected in the proposed ballot title, which states that the amendment "divid[ es]
    cannabis in to cannabis hemp (containing 0.3% or less THC) and marijuana
    (containing more than 0.3% THC)."
    However, Section 3(i) adds to the definition of "products produced from
    marijuana" in such a way that confuses the significance of the products' THC
    content. A product produced from marijuana is also any item that "may contain a
    variation in [THC] content that would span above the three tenths of one percent
    (.3%) threshold." Presumably, items that "may contain" more than .3% THC are
    subject to the regulations for recreational use.
    I note that "item" is not a defined term in the proposed amendment. In any event,
    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. A cultivator
    harvesting a mature cannabis plant in order to produce hemp might believe the
    plant need not comply with the recreational-use regulations because it does not
    contain more than .3% THC. But the same cultivator might believe the mature
    cannabis plant is subject to recreational-use regulations as an ·'item whose
    components may contain a variation in [THC] content" that amounts to .3% or
    greater. Whether the proposed amendment would limit this cultivator, for
    example, to 36 plant tags at $6.00 per tag (as a grower of marijuana for
    recreational use) or whether the cultivator could obtain an unlimited number of
    $10.00 field tags (as a grower of cannabis hemp for non-recreational use) is
    uncertain. The ambiguities present in the definitions of "product produced from Mary Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 8
    marijuana" must be clarified in order for this aspect of the proposed amendment to
    be accurately summarized in a ballot title.
13. Section 11, entitled "Federal Legislative Action," implicates
    Arkansas's Congressional delegation in a manner that appears to be
    beyond the scope of the Arkansas Constitution. I have serious
    reservations about whether this section could withstand a
    constitutional challenge, and therefore doubt that a ballot title could
    fairly reflect the section's content so as not to mislead voters.
    Section 11 of the proposed amendment states that if Arkansas law
    "differs from federal law, it is to be the responsibility of the United
    States Senators and Representatives of Arkansas to actively pursue
    and support federal legislation" that would "secure any and all other
    rights and privileges that Arkansans would otherwise enjoy ... with
    no exclusion based solely on a citizen's participation in recreational
    marijuana and cannabis hemp production and use."
    First, it is entirely unclear what this section means by "state law differ[ing] from
    federal law." Second, and just as important, a ballot title summarizing the content
    of Section 11 would lead a reasonable voter to believe that an amendment to the
    Arkansas Constitution could direct United States Senators and Representatives to
    "actively pursue and support [certain] federal legislation." But an amendment
    purporting to supervise duly elected Congressional officials in this manner would
    likely be unconstitutional. See Gralike v. Cook, 191 F .3d 911, 915 (8th Cir. 1999),
    ajf'd 531 U.S. 510 (2001) (striking an initiated amendment to the Missouri
    Constitution that "order[ ed] members of Missouri's congressional delegation to
    use their authority to amend the United States Constitution to impose the term
    limits .. . on Congressional service"). Because of these constitutional concerns,
    any ballot title premised on the language in Section 11 would be inherently
    misleading to voters.
    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 Mary Lou Berry, Sponsor
    Opinion No. 2017-010
    Page 9
    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.21 You may resubmit your proposed act along with a
    proposed popular name and ballot title at your convenience.
    Sincerely,
    ::::>~
    LESLIE RuTCc~
    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(S) 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 A BUSINESS AND ANYONE 21 YEARS
    OF AGE OR OLDER MAY OBTAIN A CANNABIS HEMP LICENSE PERMITTING THE BUSINESS OR
    PERSON TO CULTIVATE CANNABIS HEMP; AUTHORIZING RECREATIONAL USE OF MARIJUANA;
    PROVIDING THAT A BUSINESS AND ANYONE 21 YEARS OF AGE OR OLDER MAY OBTAIN A
    MARIJUANA LICENSE PERMITTING THE BUSINESS OR PERSON TO CULTIVATE, PRODUCE, AND
    SELL MARIJUANA AND PRODUCTS PRODUCED THEREFROM FOR RECREATIONAL PURPOSES;
    PROVIDING THAT A LICENSED PERSON OR BUSINESS MAY CULTIVATE UP TO 36 MARIJUANA
    ~LANTS 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 OF 2%;
    PERMITTING ANY BUSINESS 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 OWNER(S) OF THE BUSINESS AND ANY AND ALL
    EMPLOYEES HAVE A MARIJUANA LICENSE, AND THAT THE RECREATIONAL MARIJUANA BEING
    SOLD IN THE FORM OF EDIBLES OR DRINKABLES (A)IS NOT DESIGNED TO APPEAL TO CHILDREN;
    (8) SHALL NOT EXCEED 10 MILLIGRAMS OF THC PER SERVING, AND (C) LABELING OR PACKAGING
    MUST PROVIDE PRODUCT INFORMATION; PROVIDING THAT THE MANUFACTURE, POSSESSION,
    PURCHASE, SALE, AND DISTRIBUTION OF MARIJUANA PARAPHERNALIA IS LAWFUL UNDER STATE
    LAW; 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.
    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, and when
    harvested in its mature plant stage contains 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 business or person who is a
    resident of the state and is twenty-one (21) 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 or business name, date of birth,
    and current address of the holder or business.
    (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, and when harvested in its
    mature plant stage contains 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 business or 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 or business name, date of birth, and current address of the
    holder or business.
    (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), 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. UJ "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 i_n which money is being paid to purchase recreational m~rijuana.
    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
    business or person who is a resident of this state, and is twenty-one 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 business or
    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 business or person per year.
    (c) Any person or business 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 violates the provisions pursuant to this section the following penalties may be imposed:
    (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
    business or 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
    or business 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 or business. Marijuana plant tags may be purchased in any quantity, but not to exceed thirty-six (36) tags per licensed person or business
    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 or business who has a marijuana license, but the quantity of the products
    produced from marijuana shall not be limited.
    (d) Any person or business 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 business with a marijuana license whose owner(s) and employee(s) all have a marijuana license as
    defined in section 3(f) may sell recreational marijuana to any person who is twenty-one years of age or older in
    that place of business 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 business 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 violates the provision of this section the following penalties may be imposed:
    (1.) First offense: upon conviction is guilty of a Class C misdemeanor, a penalty not greater than
    five-hundred dollars ($500) shall be imposed, up to thirty 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) All edible and drinkable products produced from 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 (6.9THC) 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 (6.9THC)
    throughout the product.
    (5) Shall provide information on the packaging or labeling to enable the informed consumption of such
    product, including the potential effects of the product, and directions as to how to consume the product.
    (b) All smokable and vaporizable products produced from marijuana that are sold for recreational purposes
    shall;
    (1) Shall provide information on the packaging to enable the informed consumption of such product,
    including the delta-9-tetrahydrocannabinol (6.9THC) 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 business or person twenty-one (21) years of age or older may manufacture, possess, and purchase
    marijuana paraphernalia, or may sell marijuana paraphernalia to another business or person who is twenty-one
    years of age or older, providing that the 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 following taxes shall be imposed upon the purchase of recreational marijuana sold in Arkansas:
    (1) The Arkansas State Sales and Use Tax,
    (2) a five percent (5%) recreational marijuana excise tax, and
    (3) a two percent (2%) local sales tax.
    (b) The following taxes shall be imposed upon the purchase of cannabis hemp cultivated and sold in Arkansas:
    (1) The Arkansas State Sales and Use Tax
    (c) The sales tax that are currently imposed upon the sale of products produced from cannabis hemp shall not
    be affected by this amendment.
    (d) 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. Federal Legislative Action.
    Based on the majority vote allowing this amendment to pass, it is therefore attached that when state law differs
    from federal law it is to be the responsibility of the United States Senators and Representatives of Arkansas to actively pursue and support federal legislation that will assure the equal protection of our citizens from federal
    prosecution and asset forfeitures, and secure any and all other rights and privileges that Arkansans would
    otherwise enjoy such as; insurance coverage, banking privileges, grants, loans, assistance, and the
    constitutional right to keep and bear arms with no exclusion based solely on a citizen's participation in
    recreational marijuana and cannabis hemp production and use.
    Section 12. Conflicting Laws.
    The provisions of this Amendment are hereby declared to be severable and self-executing, and except where
    otherwise indicated in this Amendment, shall supersede all conflicting state and local laws, charters,
    regulations, and any and all other provisions in conflict with this Amendment. If any provision of this
    Amendment, or the application of such provision to any person or circumstance, is declared invalid by any
    court for any reason, such declaration shall not affect the validity of the remaining portions of this Amendment.
    ..