Why did the Arkansas AG reject Mary Berry's second 2017 recreational-marijuana ballot title?

Plain-English summary

Mary L. Berry of Summit submitted a revised version of her recreational-marijuana constitutional amendment to Attorney General Leslie Rutledge two weeks after her first version was rejected (Op. 2017-040). The revised proposal retained the same two ambiguities, and the AG rejected it again.

First, Section 4(f)(3) said all recreational marijuana being sold had to be designed and packaged "pursuant to section 5 of this amendment," but Section 5(c) exempted marijuana exchanged without remuneration from those requirements. The interaction was unclear: did the packaging rules apply to all transactions or only to commercial sales? The same problem the AG had flagged on April 7.

Second, Section 8's expungement provision had the same wording the AG had repeatedly flagged across multiple recreational-marijuana proposals. The provision said marijuana-related convictions "shall be expunged from all criminal records" and that those currently serving sentences "shall be released, provided that he or she is not currently serving for other conviction not pertaining to" the listed offenses. Two reasonable but conflicting readings: (1) only currently-served convictions are expunged, or (2) any current marijuana sentence triggers expungement of every marijuana-related conviction on the record. The phrase "other conviction not pertaining to" added a second layer of ambiguity.

The AG could not substitute a corrected ballot title because the underlying proposal was itself ambiguous. She rejected the petition under § 7-9-107(c) and again invited a redesign. Ms. Berry submitted a third version in May (Op. 2017-048), which the AG rejected for a different additional reason (silence on Amendment 98).

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.

Common questions

Q: What changed between Op. 2017-040 and this version?
A: Not the two specific provisions the AG had flagged. The April 21 version (Op. 2017-043) retained both the Section 4(f)(3)/5(c) interaction and the Section 8 expungement clause in essentially the same form. The AG's analysis was therefore the same.

Q: Why does the AG keep flagging the expungement clause?
A: Two reasons. First, the same wording recurred across multiple iterations and multiple sponsors, suggesting the drafting tradition was not catching the issue. Second, the AG treats expungement as a particularly important matter for voters because it changes the criminal record of identifiable individuals. Ambiguity here cannot be papered over with a substitute ballot title.

Q: What is the practical concern with the packaging-exemption ambiguity?
A: It goes to whether the proposal's packaging and labeling safeguards apply universally or only to commercial sales. If non-sale distribution is exempt, recreational marijuana could flow through gift networks rather than sale networks, escaping the safeguards. Voters would not know whether the rules applied universally or only to one channel.

Q: How many tries does the AG give a sponsor?
A: There is no statutory limit. Sponsors can resubmit indefinitely. Each submission gets a fresh review under the standards in § 7-9-107. The Berry series went through three iterations in 2017 (Ops. 2017-040, 2017-043, 2017-048) without certification.

Q: Was there any path forward for these proposals?
A: Ms. Berry would have needed to address the packaging-exemption interaction (either by extending packaging rules to all transactions or by clearly disclosing the exemption in the ballot title) and rewrite Section 8 to be unambiguous about which convictions get expunged. Op. 2017-048 took a different angle (medical-marijuana interaction) without fully fixing the underlying drafting issues.

Background and statutory framework

The Arkansas initiative-and-referendum process gives voters direct power to amend the constitution, but procedurally requires AG certification of the popular name and ballot title before petitions can be circulated. Section 7-9-107 governs the AG's role: substitute, certify, or reject. The Arkansas Supreme Court's standards for ballot-title sufficiency require the title to be honest, intelligible, impartial, free of partisan coloring, and conveying "an intelligible idea of the scope and significance of a proposed change in the law."

The recreational-marijuana proposals from the 2017 to 2018 cycle accumulated repeated rejections for similar reasons. Across both Berry's three submissions and Morris's three submissions, the AG flagged expungement-clause ambiguity, packaging-exemption interactions, and silence about Amendment 98 (the medical-marijuana amendment). None of the proposals from this rejection sequence ultimately made the 2018 ballot.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (popular name and ballot title certification)
• Ark. Code Ann. § 7-5-309 (voting-booth time limit)

Cases (all Arkansas Supreme Court):

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Source

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

Original opinion text

Opinion No. 2017-043
April 21, 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
AIZKANSASAG.GOV Mary L. Berry, Sponsor
Opinion No. 2017-043
Page2
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 honestl1, 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
The Arkansas Recreational Marijuana Amendment of 2018
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
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, and parole of all persons
1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326
Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139
(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. 2017-043
Page 3
whose current and only conviction(s) in which they are serving were
of State laws pertaining to the cultivation, production, distribution,
sale, possession of marijuana, marijuana paraphernalia, and or [sic]
the unlawful use of a communication device as it pertains to the sale
of marijuana; and the expungement of such marijuana related
convictions from each and every criminal record in the State;
authorizing recreational use of marijuana by persons 21 years of age
or older; providing that a business and any resident 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 have cultivating 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 person or
business with a marijuana license 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)shall [sic] not be designed to appeal to
children; (b) 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; providing that if the State
fails to begin issuing marijuana licenses, and plant tags by April
19th, [sic] 2019 such licenses and tags shall not be required to
cultivate, produce, and sell recreational marijuana until such licenses
and tags are issued by the State and 30 days is given for those
engaged in such activity to obtain such licenses and tags for the
activity in which they are engaged. Mary L. Berry, Sponsor
Opinion No. 2017-043
Page4
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
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 J
Amendment" may lead the Court to conclude that the "omission is significant."
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. I I
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."I2 At the
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).
8 Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2.
9 Id. at 9, 500 S.W.3d at 159.
10 Wilson v. Martin, 2016 Ark. 334, 9, 500 S.W.3d 160, 167.
11 Id., 500 S.W.3d at 167.
12 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). Mary L. Berry, Sponsor
Opinion No. 2017-043
Page 5
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
jmpartial, 17 and it must conver; an intelligible idea of the scope and significance of
a proposed change in the law. 8
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)
13 See Ark. Code Ann. § 7-9-107(b).
14 Bailey, 318 Ark. 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)).
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. 2017-043
Page 6
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.

1. Section 4(f)(3) states that all recreational marijuana "being sold"
   by a business or person must be "designed, packaged, and labeled
   pursuant to section 5 of this amendment." Section 5(c) states that
   marijuana "distributed to any person twenty-one 21 years of age or
   older without remuneration shall be exempt from the design,
   packaging, and labeling requirements of this section."
   It is unclear if the design/packaging/labeling requirements referred to in Section 4
   apply strictly to recreational marijuana "sold" by a business or person, or if these
   requirements apply as well to marijuana distributed without remuneration. That is,
   while Section 5( c) exempts marijuana exchanged without payment from the
   design/packaging/labeling requirements "of this section," a reasonable voter might
   question whether this exemption applies to marijuana distributed by a business or
   person under Section 4. The manner in which recreational marijuana is sold and
   distributed is crucial to a fair summary of the amendment in a ballot title. This
   ambiguity must be clarified before I can certify a title that accurately describes the
   amendment's requirements for design, packaging, and labeling.
2. Section 8 provides that "the state shall expunge from every
   criminal record in this state such marijuana related convictions that
   occurred prior to the effective date of this amendment of all persons
   ever convicted of such violations." Mary L. Berry, Sponsor
   Opinion No. 2017-043
   Page 7
   It is unclear which convictions qualify under Section 8 as "such marijuana related
   convictions" that must be expunged. On the one hand, a reasonable voter might
   believe that the intent is to expunge current marijuana-related convictions that
   "occurred prior to the effective date." Under this interpretation, a marijuana-
   related conviction would only be expunged if (1) the conviction occurred prior to
   the amendment's effective date, and (2) the sentence associated with the
   conviction was being served when the amendment took effect. On the other hand,
   a reasonable voter might conclude that if a person were serving a marijuana-
   related sentence when the amendment took effect, each and every marijuana-
   related conviction on that person's record must be expunged, regardless of when
   those convictions occurred. The effect of the proposed amendment on criminal
   convictions is a matter of great importance to Arkansas voters. This ambiguity
   must be clarified before I can accurately summarize the expungement requirement
   in a ballot title.
   CONCLUSION
   The ambiguities noted above are not necessarily all the ambiguities contained in
   your proposal, but they are sufficiently serious to require me to reject your popular
   name and ballot title. I am unable to substitute language in a ballot title for your
   measure due to these ambiguities. Further, additional ambiguities may come to
   light on review of any revisions of your proposal.
   My office, in the certification of ballot titles and popular names, does not address
   the merits, philosophy, or ideology of proposed measures. I have no constitutional
   role in the shaping or drafting of such measures. My statutory mandate is
   embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate.
   Based on what has been submitted, my statutory duty is to reject your proposed
   ballot title for the foregoing reasons and instruct you to redesign the proposed
   measure and ballot title.21 You may resubmit your proposed act along with a
   proposed popular name and ballot title at your convenience.
   Sincerely,
   ~ESLIB!:~
   Attorney General
   21 Ark. Code Ann.§ 7-9-107(c). THE ARKANSAS RECREATIONAL MARIJUANA AMENDMENT OF 2018
   (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 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, AND 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, POSSESSION OF MARIJUANA, MARIJUANA
   PARAPHERNALIA, AND OR THE UNLAWFUL USE OF A COMMUNICATION DEVICE AS IT PERTAINS
   TO THE SALE OF MARIJUANA; AND THE EXPUNGEMENT OF SUCH MARIJUANA RELATED
   CONVICTIONS FROM EACH AND EVERY CRIMINAL RECORD IN THE STATE; AUTHORIZING
   RECREATIONAL USE OF MARIJUANA BY PERSONS 21 YEARS OF AGE OR OLDER; PROVIDING THAT
   A BUSINESS AND ANY RESIDENT 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 HAVE CULTIVATING 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 PERSON OR BUSINESS WITH A MARIJUANA LICENSE 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)SHALL
   NOT BE DESIGNED TO APPEAL TO CHILDREN; (B) 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; PROVIDING
   THAT IF THE STATE FAILS TO BEGIN ISSUING MARIJUANA LICENSES, AND PLANT TAGS BY APRIL
   19TH, 2019 SUCH LICENSES AND TAGS SHALL NOT BE REQUIRED TO CULTIVATE, PRODUCE, AND
   SELL RECREATIONAL MARIJUANA UNTIL SUCH LICENSES AND TAGS ARE ISSUED BY THE STATE
   AND 30 DAYS IS GIVEN FOR THOSE ENGAGED IN SUCH ACTIVITY TO OBTAIN SUCH LICENSES AND
   TAGS FOR THE ACTIVITY IN WHICH THEY ARE ENGAGED.
   Section 1. Short Title.
   This is an amendment to the Arkansas Constitution that shall be called "The Arkansas Recreational Marijuana
   Amendment of 2018".
   Section 2. Effective Date. Effective on and after November 07, 2018 the cultivation, production, distribution, sale, possession, and use of
   the cannabis plant (genus Cannabis) as it pertains to 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) "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
   fourteen nanograms per milliliter (14ng/ml).
   (b) "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) and is cultivated to be used as an intoxicant for recreational purposes.
   (c) "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
   person or business.
   (d) "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.
   (e) "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.
   (f) "Products produced from marijuana" means items and substances manufactured from marijuana, containing
   more than three tenths of one percent delta-9-tetrahydrocannabinol (A9THC) and is used as an intoxicant that
   is consumed into the human body in the form of food, drink, vapor, or smoke.
   (g) "Recreational marijuana" means marijuana and products produced from marijuana that is used as an
   intoxicant.
   (h) "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 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 such a business or person 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(c) 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 owned by the business or person, or with the consent of the business or 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 or person with a marijuana license as defined in section 3(c) 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
   identification card prior to the purchase.
   (2) The location 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 5 of
   this amendment.
   (g) Any business or 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 5. Recreational marijuana product design, serving size, labeling and packaging.
   (a) All edible and drinkable recreational marijuana that is sold to any person twenty-one (21) years of age or
   older, by a person or business with a marijuana license as defined in Section 3(c) 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 (A9THC) 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 (A9THC)
   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 recreational marijuana that is sold to any person twenty-one (21) years of
   age or older, by a person or business with a marijuana license as defined in Section 3(c) shall:
   (1) Shall provide information on the packaging or labeling to enable the informed consumption of such
   product, including the delta-9-tetrahydrocannabinol (.d9THC) content, potential effects of the product, and
   directions as to how to consume the product.
   (c) Recreational marijuana that is distributed to any person twenty-one 21 years of age or older without
   remuneration shall be exempt from the design, packaging, and labeling requirements of this section.
   Section 6. 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 and the recreational marijuana being
   sold in that paraphernalia is designed, packaged, and labeled pursuant to section 5 of this amendment.
   Section 7. 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 8. Non-violent marijuana offenders and criminal record expungement.
   (a) 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, possession of marijuana paraphernalia, and or the
   unlawful use of a communication device pertaining to the sale of marijuana, and whose violation(s) occurred
   prior to the effective date of this amendment shall be released, and the state shall expunge from every criminal
   record in this state such marijuana related convictions that occurred prior to the effective date of this
   amendment of all persons ever convicted of such violations.
   Section 9. Taxation and distribution of proceeds from the sale of recreational marijuana.
   (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 distribution of tax revenues received by the Department of Finance and Administration from the sale of
   recreational marijuana under this amendment may be determined by the general assembly. Section 10. Marijuana licenses and plant tags.
   The state shall begin issuing marijuana licenses and plant tags by April 19th, 2019. If the state fails to begin
   issuing such licenses and tags by April 19th, 2019 the provisions of this amendment requiring such licenses
   and tags shall not be enforced, and the state shall not prohibit or penalize any business or person twenty-one
   years of age or older, engaged in the cultivation, production, and sale of recreational marijuana until such
   licenses and tags are issued by the state, and thirty days is given in order for those engaged in such activity to
   obtain such licenses and plant tags.
   Section 11. 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.