Medical Marijuana April 14, 2020
The current law regulating licit marijuana use in Arkansas was the result of a November 8, 2016, ballot initiative. By a popular vote, Arkansans approved an amendment to the state constitution permitting use of marijuana to treat specific medical conditions. The law is known as the Arkansas Medical Marijuana Amendment of 2016 and is located at Ark. Const. Amend. 98, §§ 1–25. The Amendment is comprised of 25 sections defining its terms and laying out the regulatory framework for the state agencies to put the Amendment into action. The Amendment provides that certain persons are protected in the possession and use of marijuana so long as they meet the requirements set out in the Amendment with regard to quantity, medical condition, and registration. A qualified patient is a person who has been diagnosed by a physician as having one of the following medical conditions:
Cancer, glaucoma, positive status for human immunodeficiency virus/ acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Tourette’s syndrome, Crohn’s disease, ulcerative colitis, posttraumatic stress disorder, severe arthritis, fibromyalgia, Alzheimer’s disease, cachexia or wasting syndrome; peripheral neuropathy; intractable pain, which is pain that has not responded to ordinary medications, treatment, or surgical measures for more than six (6) months; severe nausea; seizures, including without limitation those characteristic of epilepsy; or severe and persistent muscle spasms, including without limitation those characteristic of multiple sclerosis.
Id. at § 2 (13). The patient must also register with the Arkansas Department of Health (“ADH”) to receive their registry identification card prior to purchasing or using medical marijuana. Id. at § 5.
Qualified patients and designated caregivers are protected from arrest, prosecution, or penalty, including “civil penalty or disciplinary action by a business, occupational, or professional licensing board or bureau,” Id. at § 3(c), so long as their use or possession is in accord with the other requirements of the Amendment, they are registered with ADH, and they do not possess more than 2.5 ounces. The Amendment permits a “dispensary” to accept, transfer, or sell marijuana seeds, plants, or usable product to and from dispensaries and cultivation facilities in Arkansas and across state lines when/if permissible by federal law. Id. at § 8.
Special protections were included to counteract housing, schooling, or employment discrimination based on the use of marijuana under the law. Id. at § 3(f). However, the law specifically provides that an employer may take action to prevent use of marijuana at work or during such time that an employee is under the influence of marijuana at work if that employee is in a safety sensitive position. Id. at § 3(f)(3)(B).
Three state agencies are involved in administering the new law. First, ADH is charged with administering patient and caregiver qualification and registration as well as controlling the labeling and testing standards for marijuana. Id. at § 5. Next, the Amendment provides that the Medical Marijuana Commission (“MMC”) will license dispensaries and cultivation facilities. Id. at § 8(a). The Commission is required to license between twenty and forty dispensaries with no more than four in any one county and is required to license between four and eight cultivation facilities. Id. at § 8(h)–(i).
In the initial licensing process, the MMC elected to license five cultivation facilities and 33 dispensaries. At least 60% of the individuals “associated with” a dispensary or cultivation facility must have been residents of the state of Arkansas for the previous seven years. Id. at § 8(c). In addition, ownership of the dispensaries and cultivation facilities is limited by § 8(l), which prohibits an individual from owning more than one cultivation facility and one dispensary. Last, the Alcoholic Beverage Control Division (“ABC”) is tasked with enforcing the Medical Marijuana Commission’s rules regarding dispensaries and cultivation facilities. Id. at § 8(a)(3).
The sales tax and a special tax created by the Amendment on the sale of marijuana are distributed to the Arkansas Medical Marijuana Implementation and Operations Fund. Id. at § 17. This fund provides first for the payment of any expenses incurred by ADH, MMC, ABC, or any other state agency that has incurred expenses related to the Amendment. After distribution to state agencies, any leftover funds are added to the state general fund.
Recreational Use of Marijuana
Currently, Arkansas does not permit any recreational use of marijuana, but there is a ballot initiative proposed for the November 3, 2020, polls that would amend the state constitution to allow recreational use of marijuana by individuals over the age of 21. The initiative must receive 89,151 signatures before it will be permitted on the ballot. At this time, the initiative has not been approved to be added to the ballot.