Issue 3 of 2024 - Arkansas Medical Marijuana Amendment

The Arkansas Medical Marijuana Amendment of 2024

This amendment to the Arkansas Constitution expands access to medical marijuana by qualified patients under the Arkansas Medical Marijuana Amendment of 2016, Amendment 98 and ratifies and affirms that amendment as originally adopted and as amended by any legislative act, except as specified; amending Amendment 98, § 2(4)(B) to define "cultivation facility" as including sale and delivery of usable marijuana to a processor; amending Amendment 98, § 2(12) to replace the definition of "physician" with "health care practitioner," which includes medical and osteopathic doctors, nurse practitioners, physicians' assistants, and pharmacists and to remove requirements for federal controlled-substances registration; amending Amendment 98, §§ 4(f), 5(a)(l), 5(f)(1), 5(h), and 15 to replace references to physicians with references to health care practitioners; amending Amendment 98, § 2(13)(C) to add language to the definition of "qualifying medical condition" to include any condition not otherwise specified in Amendment 98 that a health care practitioner considers debilitating to a patient that might be alleviated by the use of usable marijuana; amending Amendment 98, § 2(14)(A) to allow non-Arkansas residents to apply for and receive registry identification cards in the same way as Arkansas residents; amending Amendment 98, § 2(17) to define "usable marijuana" as cannabis and other substances including all parts of the plant Cannabis sativa, whether growing or not, including any seeds, resin, compound, manufacture, salt, derivative, mixture, isomer or preparation of the plant, including tetrahydrocannabinol and all other cannabinol derivatives, and to exclude hemp with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis; amending Amendment 98, § 2(19) to remove language requiring a physician-patient relationship from the definition of "written certification" and to allow assessments in person or by telemedicine; amending Amendment 98, § 3(e) to allow licensed dispensaries to receive, transfer, or sell marijuana seedlings, plants, or usable marijuana to and from Arkansas-licensed cultivation facilities, processors, or other dispensaries, to accept marijuana seeds, seedlings, or clones from any individual or entity authorized by law to possess them, and to sell usable marijuana, marijuana seedlings, plants or seeds to qualifying patients and designated caregivers; amending Amendment 98, § 3(h) to remove language allowing professional licensing boards to sanction a physician for improper evaluation of a patient's medical condition or for violating the standard of care; amending Amendment 98, §3(1) to remove authorization for Department of Health rules concerning visiting qualifying patients obtaining marijuana from a dispensary; amending Amendment 98, § 4(a)(4)(A) to require criminal background checks for all applicants seeking to serve as designated caregivers, with the exception of parents or guardians of minors who are qualifying patients applying to serve as designated caregivers for those minors; amending Amendment 98, § 5(a)(2) to remove language requiring reasonable registry identification card application fees or renewal fees; amending Amendment 98, § 5(d) to extend the expiration date of registry identification cards from one to three years and to add two additional years to the expiration date of existing cards; amending Amendment 98, § 8(e)(8) to remove and replace advertising restrictions with restrictions for dispensaries, processors, and cultivation facilities narrowly tailored to prevent advertising and packaging from appealing to children and to require the Alcoholic Beverage Control to make rules that require packaging that cannot be opened by a child or that prevents ready access to toxic or harmful amounts of the product; amending Amendment 98, § 8(m)(l)(A) to remove prohibitions on dispensary-provided paraphernalia requiring combustion of marijuana; amending Amendment 98, § 8(m)(4)(A)(ii) to allow cultivation facilities to sell marijuana in any form to dispensaries, processors, or other cultivation facilities; amending Amendment 98, § 16 to replace its current language with a waiver of state sovereign immunity so that a licensed person or entity may seek injunctive relief in the event the state fails to follow Amendment 98; amending Amendment 98, § 21 to remove a prohibition on the growing of marijuana by qualifying patients and designated caregivers and to allow such growing under Amendment 98; repealing Amendment 98, §§ 23 and 26 in their entirety; amending Amendment 98 to allow qualifying patients or caregivers at least 21 years old and in possession of a valid registry identification card to possess, plant, dry, and process marijuana plants in limited quantities and sizes at their domicile solely for the personal use of the qualifying patient, to prohibit sale, bartering, and trade of such marijuana plants, and to provide for regulation of such activities by the Alcoholic Beverage Control Division; amending Amendment 98 to allow possession by adults of up to one ounce of usable marijuana, to allow sale of marijuana by licensed cultivation facilities and dispensaries for adult use if current federal law prohibiting such activities changes, and to provide for the regulation of the wholesale and retail of marijuana by licensed cultivation facilities and dispensaries by the Alcoholic Beverage Control Division; amending Arkansas Constitution, Article 5, § 1, to provide that unless provided in such constitutional amendment, no constitutional amendment shall be amended or repealed unless approved by the people under the Constitution; providing that this amendment's provisions are severable, nullifying any provision of state law in conflict with this amendment; and providing that the amendment is self executing.

Arkansas is one of 15 states where citizen groups can with voter petitions put a proposed constitutional amendment, state law, or veto referendum on the ballot.

Constitutional amendments require verified voter signatures from at least 10% of the number of people who voted for governor in the last election, with a certain percentage coming from at least 50 of the state's 75 counties. In 2024, ballot issue groups needed signatures from at least 90,704 voters to qualify for the ballot. 

This proposal was included on the statewide ballot distributed by the Secretary of State on Aug. 22 to county election officials. However, the ballot issue's status is uncertain. Sponsors submitted their petitions in July and qualified for an additional 30 days to collect more voter signatures. Their due date is after the Aug. 22 deadline. If they end up not having enough signatures, votes cast for or against Issue 3 would not be counted.

Arkansans for Patient Access, which is a ballot question committee registered with the Arkansas Ethics Commission, formed to support this ballot measure.

A FOR vote means you are in favor of changing the Arkansas Constitution to prohibit legislators from changing or repealing any constitutional amendment without another vote of the people, and you are in favor of expanding the state’s existing medical marijuana program with regards to who can qualify for the program, the types of health care professionals who can certify patients for the program, and to allow patients to grow marijuana at home, among other changes.

An AGAINST vote means you are not in favor of changing the Arkansas Constitution to prohibit legislators from changing any constitutional amendments without another vote of the people, and you are against expanding the state’s existing medical marijuana program with regards to who can qualify for the program, the types of health care providers who can certify patients for the program, and allowing patients to grow marijuana at home, among other changes.

On Election Day, the ballot will show only the popular name and ballot title of this issue.

Every proposal has more text to it that further describes the proposed law. Read the complete text of Issue 3.

https://caseinfo.arcourts.gov/opad/case/CV-24-652 

Issue 3 proposes changing two existing Arkansas laws:

• Article 5, Section 1 of the Arkansas Constitution, titled “Initiative and Referendum,” and
• Amendment 98, known as the Arkansas Medical Marijuana Amendment of 2016.

Currently, Article 5, Section 1 of the Arkansas Constitution, “Initiative and Referendum,” allows constitutional amendments to be amended or repealed if approved by two-thirds of all members of the House of Representatives and the Senate.

Issue 3 proposes adding a new subsection to Article 5, Section 1 that would prohibit legislators from changing or repealing constitutional amendments without approval from voters unless the amendment expressly allows them to do so.

Issue 3 also proposes adding and removing sections of Amendment 98 – The Arkansas Medical Marijuana Amendment of 2016.

Note: Issue 3 and this fact sheet use cannabis and marijuana interchangeably. The fact sheet also uses the phrases “registry identification card” and “medical marijuana card” interchangeably throughout this fact sheet.

Regarding the legislature, state agencies, and state government, Amendment 98 would be changed to:

• Repeal permission previously given to legislators in Amendment 98 to make changes to Amendment 98.
  
  
• Put the Alcoholic Beverage Control Commission in charge of rules for cardholders growing cannabis at home.
  
  
• Establish that the state could be sued for not establishing or enforcing parts of Amendment 98.

Regarding health care professionals, Amendment 98 would be changed to:

• Expand who can certify a patient for a medical marijuana card from physicians to health care practitioners, which are defined as doctors of medicine or osteopathic medicine, nurse practitioners, physician’s assistants and pharmacists who hold a valid, unrestricted license to practice in the state of Arkansas.
  
  
• Eliminate a requirement for physicians to have a controlled substance license on file with the U.S. Drug Enforcement Agency to be eligible to certify.
  
  
• Eliminate a requirement that physicians have a “physician-patient relationship” with people seeking medical marijuana cards. Such a relationship typically involves a physician performing an exam on the patient and being informed of their medical history.
  
  
• Expand the use of telemedicine (a written certification to patients assessed over video) by allowing it for people seeking medical marijuana card certification for the first time. Currently, telemedicine is only allowed for renewals of cards for existing medical marijuana cardholders.
  
  
• Remove a section of Amendment 98 that says nothing in the law prevents a professional licensing board from sanctioning a physician for failing to properly evaluate a patient’s medical care or for violating the physician-patient standard of care.
  
  
• Specifically prohibit health care providers from accepting, soliciting or offering money from or to a dispensary or cultivation facility in exchange for providing written certification for patients.

Regarding qualifying conditions, Amendment 98 would be changed to:

• Expand qualifying medical conditions to include any debilitating condition a patient has that a health care practitioner concludes might be alleviated by the use of marijuana.

Regarding patients and their caregivers, Amendment 98 would be changed to:

• Allow people who live outside of Arkansas to apply for and receive registry identification cards in the same way as Arkansas residents. Individuals from out of state with the equivalent of a registry identification card from elsewhere in the United States would also be allowed to enter and purchase medical marijuana in an Arkansas dispensary subject to Arkansas law.
  
  
• Exempt parents or guardians of children who have a medical marijuana card for their own qualifying condition from having to undergo criminal background checks as part of being certified to purchase marijuana as a caregiver for their children.
  
  
• Prohibit the state from charging what is currently a $50 application fee to receive a medical marijuana card such that there will be no application fee.
  
  
• Extend the expiration date of medical marijuana cards from one year to three years.
  
  
• Extend all existing patients’ cards by two years automatically. It would also remove language allowing a physician to issue a written certification for less than one year if he or she believes the qualifying patient would benefit from the medical use of marijuana only until a specified earlier date.

Regarding growing marijuana for personal use, Amendment 98 would be changed to:

• Remove a prohibition on growing marijuana at home. Cardholders 21 years and would be allowed to grow and process for their own use no more than 14 cannabis plants at one time. They would be limited in terms of size to seven large cannabis plants (14 or more inches tall) and seven smaller cannabis plants. No more than 14 plants could be grown at a single home, even if there are multiple medical marijuana cardholders living there. The Arkansas Beverage Control Commission would be tasked with creating any additional rules related to growing marijuana at home. Qualifying patients growing or processing marijuana for personal use would be prohibited from selling or trading that marijuana for anything of value.
  
  
• Allow cardholders or their designated caregivers to buy seeds or plants from dispensaries.

Regarding advertising and packaging restrictions, Amendment 98 would be changed to:

• Place advertising restrictions on processors; current restrictions only apply to dispensaries and cultivation facilities.
  
  
• Remove “marketing” and “promotion” from restrictions regarding advertising appealing to children; these conditions would still apply to “advertising” and “packaging.”
  
  
• Remove current restrictions related to appealing to children in medical marijuana advertising and marketing so that such restrictions no longer extend to artwork, building signage, product design, indoor displays and other forms of marketing.
  
  
• Remove a requirement that product packaging meet federal consumer safety regulations for poison prevention.
  
  
• State that the Alcoholic Beverage Control Division’s rules would require packaging that either (1) cannot be opened by a child or (2) prevents ready access to toxic or harmful amounts of the product.

Regarding cultivation facilities, Amendment 98 would be changed to:

• Allow cultivation facilities to sell marijuana to a processor. Current law only allows them to sell to dispensaries or other cultivation facilities.

Regarding dispensaries, Amendment 98 would be changed to:

• Allow dispensaries to sell cannabis seeds, seedlings, and plants to cardholders or their designated caregiver to grow at home.
  
  
• Remove existing restrictions on dispensaries that say they can’t supply, possess, manufacture, deliver, transfer or sell paraphernalia that requires the burning of marijuana, including various styles of pipes, bongs, rolling papers and roach clips.

Regarding federal law or decriminalization, Amendment 98 would be changed to:

• Allow adults to possess up to one ounce of marijuana for personal use if the federal government ever decriminalizes cannabis or removes it from its list of controlled substances.
  
  
• Allow licensed cultivators and dispensaries to sell marijuana at the wholesale and retail level if the federal government ever decriminalizes cannabis or removes it from its list of controlled substances.

Voters approved Amendment 98, known as the Arkansas Medical Marijuana Amendment of 2016, by a statewide vote of 585,030 (53%) in favor to 516,525 (47%) against. In doing so, Arkansas voters approved creating a state medical marijuana program. The first medical marijuana was sold in Arkansas in 2019.

In 2022, Arkansas voters rejected a proposed constitutional amendment to allow and regulate adult use of marijuana for non-medical purposes in Arkansas and make changes to Amendment 98. That proposal would have effectively ended the need for a medical marijuana law.

Voters approved Amendment 98, known as the Arkansas Medical Marijuana Amendment of 2016, by a statewide vote of 585,030 (53%) in favor to 516,525 (47%) against. In doing so, Arkansas voters approved creating a state medical marijuana program. The first medical marijuana was sold in Arkansas in 2019.

In 2022, Arkansas voters rejected a proposed constitutional amendment to allow and regulate adult use of marijuana for non-medical purposes in Arkansas and make changes to Amendment 98. That proposal would have effectively ended the need for a medical marijuana law.

Currently, conditions that qualify a person for participating in the state's medical marijuana program include:

• Cancer
• Glaucoma
• HIV/AIDS
• Hepatitis C
• Amyotrophic lateral sclerosis (ALS)
• Tourette’s syndrome
• Crohn’s disease
• Ulcerative colitis
• Post-traumatic stress disorder (PTSD)
• 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
• Severe and persistent muscle spasms including without limitation those characteristic of multiple sclerosis
• Any other medical condition or its treatment approved by the Department of Health. (The Department of Health has not added any other condition to this list.)

Issue 3 proposes adding to this list:

Any other condition not otherwise specified that a health care practitioner considers debilitating to the patient and which may be alleviated by the use of usable marijuana.

Regulations vary greatly by state. As of April 2023, Arkansas was one of 38 states that allowed for the use of medical marijuana according to the National Conference of State Legislatures. Another nine states allowed the use of “low THC, high cannabidol (CBD)” products for medical reasons or as a legal defense. As of February 2024, 24 states plus Washington D.C., had enacted laws allowing recreational marijuana use. Three states – Kansas, Nebraska and Idaho – have no marijuana program.

Marijuana remains illegal at the federal level. The Controlled Substances Act approved in 1970 included marijuana as a Class I substance. A Schedule I substance under the Controlled Substances Act, according to the federal Drug Enforcement Agency, means it has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Other examples of Schedule I drugs include heroin, LSD and ecstasy.

However, marijuana’s federal classification may be changing. In May 2024, the U.S. Attorney General announced he would seek to move marijuana from a Schedule I drug to a Schedule III drug through the federal rulemaking process. The proposal, according to the U.S. Department of Justice, is “consistent with the view of the Department of Health and Human Services (“HHS”) that marijuana has a currently accepted medical use as well as HHS’s views about marijuana’s abuse potential and level of physical or psychological dependence.”

Schedule III substances are defined as drugs with a moderate to low potential for physical and psychological dependence. Some examples of Schedule III drugs include Tylenol with codeine, ketamine, anabolic steroids and testosterone.

Public comment on the proposed rule change closed July 22. The effect on state programs is unknown at this time.

Issue 3 changes Amendment 98’s definition of “usable marijuana” in a way that excludes hemp from the definition.

The proposed definition of usable marijuana is “cannabis and other substances including any parts of the plant Cannabis sativa, whether growing or not, its seeds and the resin extracted from any part of the plant; and any compound, manufacture, salt, derivative, mixture, isomer or preparation of the plant, including tetrahydrocannabinol and all other cannabinol derivatives, whether produced directly or indirectly by extraction except that usable marijuana shall not include hemp with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Usable cannabis does not include the weight of any other ingredient that may be combined with cannabis.”

No. Amendment 98 would continue to prohibit members of the Arkansas National Guard and the United States military from obtaining a medical marijuana card as a qualifying patient or designated caregiver.

No. Amendment 98 would continue to allow for only 40 dispensary licenses to be issued in Arkansas.

No. Amendment 98 would continue to allow for no more than 8 cultivation facility licenses to be issued in Arkansas.

No. Cardholders would continue to be able to purchase up to 2.5 ounces from a dispensary in a 14-day period. 

No. The tax rate and distribution of medical marijuana tax revenue will remain the same as governed by Amendment 98 and other Arkansas state laws.

The sale of usable marijuana is subject to all state and local sales taxes. Currently, Arkansas has a 6.5% sales tax with 0.5% allocated to state’s four-lane highway system, county roads, and city streets under Amendment 91 and 0.8% going towards the Arkansas Game and Fish Commission, the Department of Parks and Tourism, the Department of Heritage, Parks and Tourism and Keep Arkansas Beautiful under Amendment 75.

All remaining state sales tax collected on medical marijuana sales goes to the Arkansas Medical Marijuana Implementation and Operations (AMMIO) Fund. These funds are used to offset expenses incurred by state departments that oversee and administer the medical marijuana program, including the Alcoholic Beverage Control Division of the Department of Finance and Administration, Arkansas Department of Health, Medical Marijuana Commission and any other state agency that incurs implementation, administration, or enforcement expenses related to Amendment 98. Any tax revenue remaining after paying costs associated with the medical marijuana program are distributed to the state’s General Revenue Fund.

Usable marijuana is also subject to the Arkansas Medical Marijuana Special Privilege Tax. Proceeds from this 4% tax on medical marijuana sales to dispensaries and to consumers goes into the AMMIO fund and are used in the same way as state sales tax revenues from medical marijuana sales. Everything beyond operating expenses is directed to the University of Arkansas for Medical Science for its National Cancer Institute Designation Trust Fund. The Arkansas Medical Marijuana Special Privilege Tax is set expire on July 1, 2025 unless extended by the General Assembly.

During the state’s 2023 fiscal year, patients and caregivers combined paid $5.27 million in application fees. In Fiscal Year 2024, which ended in July, patients and caregivers paid a combined $5.7 million in application fees.

Application fees are deposited into the state’s AMMIO fund.

Nearby states of Louisiana, Mississippi and Oklahoma have medical marijuana programs similar to Arkansas.

• Similar to Issue 3, Louisiana’s law has a list of qualifying conditions and specifically allows doctors to recommend medical marijuana for any condition they consider debilitating to the patient.
  
  
• Mississippi’s law also has a list of qualifying conditions but does not give doctors broader authority to recommend marijuana for more medical issues. The list is similar to Arkansas’s under the current Amendment 98, but specifically mentions Parkinson’s disease, Huntington’s disease, spastic quadriplegia, sickle-cell anemia, agitation of dementia, autism, pain refractory to appropriate opioid management, diabetic neuropathy, and spinal cord disease or severe injury.
  
  
• Oklahoma’s law does not list specific qualifying medical conditions for medical marijuana. Doctors are able to recommend people based on their individual medical situations.

If approved, the changes in this proposal would take effect Nov. 15, 2024.

• Medical cannabis cards will be valid for three years, reducing renewal burdens for patients and caregivers. Visitors who have a medical card from their state may use Arkansas dispensaries without the need of a temporary card.
  
  
• Healthcare practitioners have increased discretion to determine if medical cannabis is appropriate for their patients, making it easier for those in need to receive treatment. The expanded definition of “healthcare practitioner” broadens the range of qualified professionals who can provide written certifications. Pharmacists, nurse practitioners, and physician’s assistants will now qualify.
  
  
• Patients and their caregivers have the right to grow their own cannabis at home, promoting both affordability and accessibility, particularly for rural cardholders. Patients will be able to grow up to 14 plants, only half of which may be mature. The amendment stipulates that home cultivation must comply with state regulations, which include security measures to ensure that the plants are not accessible to unauthorized individuals, including children.

• Since the amendment allows marijuana to be home grown and processed at any residence, the law will shield foreign drug cartels who move into Arkansas communities and neighborhoods to grow and process marijuana so it can be illegally shipped across the nation as they are currently doing in Oklahoma.
• Passage of the amendment will hurt children because it removes Arkansas’ restrictions on marijuana advertising, making it possible for children to see marijuana ads on TV, online, and on cell phones. It creates further danger to children by removing child-proof packaging requirements and allowing harmful levels of THC to be infused into candy that is appealing to children.
  
  
• Providing taxpayer-funded marijuana cards to out-of-state people free of charge will draw illegal immigrants and the homeless to Arkansas communities as has occurred in California.