Why did Arkansas reject the 2018 'Marijuana As Alcohol' constitutional amendment ballot title?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment titled "The Arkansas Regulation of Marijuana As Alcohol Amendment." The amendment would have removed marijuana from Arkansas's controlled-substances scheme and instructed the Arkansas Alcoholic Beverage Control Division to regulate marijuana "as an alcoholic beverage," letting all businesses licensed to produce, sell, or distribute beer, wine, or liquor also produce, sell, and distribute marijuana.

Attorney General Leslie Rutledge rejected the entire submission. The opinion's central concern was a federal-state regulatory collision: alcoholic-beverage producers and wholesalers in Arkansas operate under federal permits issued by the Alcohol and Tobacco Tax and Trade Bureau (TTB) under 27 C.F.R. pt. 1. Marijuana remains a Schedule I controlled substance under federal law. Putting Arkansas alcohol licensees on a track to produce or distribute marijuana would put them on a "collision course with federal law" that they could not legally navigate. The amendment's regulatory premise was therefore not workable.

The opinion also noted that, like the related Op. 2018-132, the ballot title failed to convey the substantial changes the amendment would make to existing state law (the Uniform Controlled Substances Act, the Omnibus DWI/BWI Act, and the AMMA). The ballot title's "shall not be construed to limit any privileges or rights" clauses were similarly disconnected from the measure's actual operation.

The AG concluded that the breadth of the proposed change combined with the federal-conflict problem made it doubtful that any ballot title could honestly summarize the measure under the Arkansas Supreme Court's standard.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

Federal alcohol regulation operates through the TTB and 27 C.F.R. pt. 1. Producers, wholesalers, importers, and distillers must hold federal basic permits, and the federal regime imposes obligations and restrictions on what those licensees can do. Marijuana, by contrast, remains a Schedule I controlled substance under the federal Controlled Substances Act, with no federal permit available for its commercial production or distribution.

Arkansas's Uniform Controlled Substances Act (Ark. Code Ann. § 5-64-101 et seq.) classifies marijuana under state law. The Omnibus DWI/BWI Act (§ 5-65-101 et seq.) governs impaired driving. The AMMA (Ark. Const. amend. 98) creates the medical marijuana regulatory framework.

The amendment would have:

• Removed marijuana from the Arkansas Uniform Controlled Substances Act.
• Directed the Arkansas Alcoholic Beverage Control Division to regulate marijuana as an alcoholic beverage.
• Allowed all alcohol licensees to also produce, sell, and distribute marijuana.
• Restricted marijuana sales in dry counties (subject to private-club permit exceptions).
• Released anyone serving incarceration, probation, or parole for a marijuana-only conviction prior to the effective date.
• Allowed adult residents to cultivate up to 6 plants and possess unlimited seed and product, with non-residents capped at 1 ounce smokable or 72 ounces of food/drink per day.
• Imposed an 8% state recreational marijuana excise tax and a 5% local sales tax.
• Disclaimed effects on employer policies, DUI rules, sales to minors, and AMMA rights.

Why federal conflict was the dispositive issue

The opinion identified the federal-conflict problem as something a ballot title could not honestly summarize. A voter reading the ballot title would think the amendment would set up a coherent regulatory regime in which alcohol licensees could also handle marijuana. But that regime cannot exist absent federal change. The amendment would either:

• Force alcohol licensees to choose between their federal permits and their new state-authorized marijuana activities, or
• Create a state-authorized but federally illegal commercial marijuana sector with no clean enforcement framework.

Either way, the ballot title's representation about how the new regime would operate would be misleading.

The AG also noted that, like Op. 2018-132 and earlier opinions in the same line (2018-119, 2018-100, 2018-046), the ballot title failed to inform voters of the substantial collateral consequences for the AMMA, the DWI/BWI Act, and the broader controlled substances regime.

Common questions

Why did the AG reject this marijuana-as-alcohol amendment?

The amendment's regulatory premise (alcohol licensees handling marijuana) was structurally unworkable because of federal alcohol regulation under 27 C.F.R. pt. 1. Federal alcohol licensees cannot also handle a Schedule I substance. That conflict made any ballot title summarizing the scheme inherently misleading.

Couldn't the amendment just create new marijuana licenses?

The amendment did not do that. It tied marijuana regulation to existing alcohol licensure, which is what the AG identified as unworkable. A different drafting approach (creating an independent state marijuana licensing scheme) might avoid the federal-permit problem.

What's the difference between this opinion and Op. 2018-132?

Op. 2018-132 addressed an initiated act removing marijuana from the controlled substances list. Op. 2018-134 addressed a constitutional amendment doing the same thing plus tying marijuana regulation to alcohol licensure. The federal-conflict problem in 2018-134 went further than the misleading-ballot-title problem in 2018-132.

Does this mean a marijuana legalization amendment can never pass Arkansas's ballot title review?

No. The opinion identifies specific drafting choices that doomed this amendment. A different sponsor could draft a measure that avoids the federal-conflict regulatory premise (for example, by creating an independent state marijuana licensing regime not tied to alcohol licensure) and write a ballot title that fairly summarizes the changes to existing state law.

What is the AG's standard for "extent and import"?

Per Dust v. Riviere, a ballot title must give voters "a clear understanding of the 'extent and import' of the proposal, so that they can 'make an intelligent choice, fully aware of the consequences of their vote.'" Where the consequences are large or systemic, the ballot title must say so.

Citations

Ark. Code Ann. §§ 5-64-101 et seq., 5-65-101 et seq., 7-9-107, 25-16-701; Ark. Const. amend. 98; 27 C.F.R. pt. 1; Bailey v. McCuen, 318 Ark. 277 (1994); Christian Civic Action Comm. v. McCuen, 318 Ark. 241 (1994); Lange v. Martin, 2016 Ark. 337; Roberts v. Priest, 341 Ark. 813 (2000); Dust v. Riviere, 277 Ark. 1 (1982); prior AG opinions Ops. Att'y Gen. 2018-132, 2018-119, 2018-100, 2018-046.

Source

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

Original opinion text

Opinion No. 2018-134
October 26, 2018
Mary L. Berry, Sponsor

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2017), of the popular name and ballot title for a proposed constitutional amendment to remove marijuana from the Arkansas Uniformed Controlled Substance Act and to regulate and tax marijuana as an alcoholic beverage in Arkansas.

(Standard guidelines on AG ballot-title review under § 7-9-107 and the Arkansas Supreme Court's ballot-title sufficiency framework followed.)

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. In this case, I must reject your popular name, ballot title, and proposal because of fundamental deficiencies with the submission.

DISCUSSION

The ballot title you have submitted is wholly deficient because it fails to fairly and completely describe changes the proposal would make in existing state law. Most importantly, your proposed amendment authorizes the cultivation, production, and sale of marijuana under alcoholic-beverage permits. This is a significant problem because it puts federally permitted alcoholic-beverage producers and wholesalers in the state on a collision course with federal law. And absent a change in federal law, this conflict cannot be resolved. Thus, any ballot title premised on regulatory features like those you have proposed would be inherently misleading to voters.

The Arkansas Supreme Court has elaborated on the duty to describe the changes in law a proposal is to make. According to the Court, a ballot title will be deemed insufficient if it does not give the voters a clear understanding of the "extent and import" of the proposal, so that they can "make an intelligent choice, fully aware of the consequences of their vote."

In the case of your proposed constitutional amendment, the consequences of approval would doubtless be of serious concern to voters weighing the merits of the measure. But a reasonable voter will not, based on the ballot title you have submitted, be able to fully recognize all the ways your measure proposes to substantially change current law in Arkansas with respect to marijuana as a controlled substance. I doubt that this failure can be rectified given the breadth of the proposed change. I believe the Court would have serious concerns about voters' ability to fully understand and appreciate the issues presented in your proposed amendment. This may be a case where, in the words of the Court, the proposed measure is not capable of having a ballot title that will "convey an intelligible idea of the scope and significance of [the] proposed change in the law."

CONCLUSION

My office is not charged with any role in drafting initiated amendments or acts. Nor can I advise individual sponsors, who must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. Your submission falls short of these criteria. I must therefore reject your ballot title, popular name, and proposed measure.

LESLIE RUTLEDGE
Attorney General
Enclosure

(The submission's full popular name "THE ARKANSAS REGULATION OF MARIJUANA AS ALCOHOL AMENDMENT" and ballot title, plus the full text of the proposed amendment with sections on title, effective date, definitions, removal of marijuana from controlled substances, alcohol-style regulation, expungement of prior convictions, personal use limits, taxation, and various carve-outs, was attached to the original opinion.)