A cannabis cultivator displays the bud on a growing marijuana plant at a marijuana cultivation facility on in Las Vegas. The Arkansas Supreme Court will decide whether Arkansans get to vote in November on a proposal to legalize recreational marijuana. (Photo by Ethan Miller/Getty Images)
This story has been updated.
It remains unclear if Arkansans will decide whether to legalize recreational marijuana at the ballot box in November, but some in the hemp industry are already concerned.
For several weeks, hemp insiders have quietly raised questions about the language of the Arkansas Adult Use Cannabis Amendment, proposed by Responsible Growth Arkansas.
Would the amendment’s broad definition of cannabis upend Arkansas’ industrial hemp industry by subjecting it to the same regulation as recreational marijuana cultivators and retailers?
Would current hemp growers lose their licenses?
Now, a group opposing the ballot measure has raised the issue with the Arkansas Supreme Court, which will decide whether the proposed constitutional amendment makes the ballot.
Save Arkansas From Epidemic, a ballot question committee formed to oppose the recreational marijuana proposal, argued in a brief filed Tuesday that those offering the amendment failed to properly distinguish between “adult-use cannabis” and hemp as well as disclose the amendment’s impact on the hemp industry.
“The Measure fails to provide any exemption for Hemp, contrary to both current Arkansas and Federal law,” Save Arkansas From Epidemic argued. “Whether by intention, omission, oversight, neglect, or economic imperative, the Measure encompasses Industrial Hemp as currently authorized in Arkansas, prohibits further growing or processing of Industrial Hemp except as authorized by the Measure, and leaves no room for legislative or other adjustments to the Measure.”
A second group that opposes the amendment also raised the potential hemp conflict in a brief it filed Aug. 26.
The state also filed its brief, defending the Board of Election Commissioners’ decision to disqualify the measure.
The proposed amendment’s fate rests with the Supreme Court because the State Board of Election Commissioners rejected the group’s ballot title in August.
Responsible Growth sued, and the court ordered election officials to include the measure on November ballots. But the court likely won’t decide until this month whether votes on the measure should be counted.
Responsible Growth filed its reply at the Supreme Court Friday .
The group reiterates that the Board of Election Commissioners’ basis for rejecting the ballot title was incorrect.
Responsible Growth also argues that the intervening groups failed to make arguments that challenged the sufficiency of the ballot title.
On the hemp issue, Responsible Growth chiefly argues that the intervenors’ arguments are speculative and not relevant to whether the ballot title is sufficient.
The marijuana group’s attorneys also said that the intervenors’ arguments that hemp would be affected are incorrect. The proposed amendment, Responsible Growth said, would only apply to substances currently illegal under federal law, unlike hemp, which is legal.
“While interpreting the Amendment falls beyond the scope of the sufficiency analysis, intervenors’ interpretation is wrong,” Friday’s brief reads. “The Amendment does not prohibit hemp authorized under existing law. The repealer clause applies only to laws forbidding ‘activities allowed under this amendment,’ which does not mention hemp…
“Intervenors try to turn those provisions into a prohibition on hemp, but that interpretation is tortured at best.”RGA_Reply
The heart of the concern about hemp lies in how the amendment defines adult-use cannabis:
“Marijuana 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 plan, including tetrahydrocannabinol and all other cannabinol derivatives, whether produced directly or indirectly by extraction.”
The problem, for some, is that the definition doesn’t include an exemption for hemp as definitions adopted by the federal government and other states have.
The 2018 Farm Bill, which legalized hemp, defined it as “any cannabis plant, or derivative thereof, that contains not more than 0.3% delta-9 tetrahydrocannabinol,” more commonly known as THC, the intoxicating compound of cannabis.
The federal government still considers marijuana illegal.
Both marijuana and hemp are forms of cannabis. The difference is that hemp has such a low concentration of THC that it can’t be used to get high.
Arkansas started its hemp program in 2019. Today, there are 22 licensed hemp growers and eight processors.
Hemp Industries Association Executive Director Jody McGinness said the proposed constitutional amendment could be “problematic in the extreme” for Arkansas’ hemp industry. The association represents hemp businesses and farms from around the U.S. and in Arkansas.
McGinness said the amendment seems like it would subject hemp products to the same stringent regulations and licensing requirements as recreational marijuana.
“That would include [hemp-derived] rope, it would include CBD, it would include paper,” McGinness said. “Anything from the plant could be included.”
Several marijuana law experts said that concerns about the Responsible Growth’s broad definition were valid, but none thought the issue was perfectly black and white.
Prof. Jay Wexler, an expert on marijuana law who teaches at the Boston University School of Law, said the definition could be problematic, but he offered another possible interpretation.
“Since ‘adult use cannabis’ is defined as cannabis ‘authorized for possession, personal use, and consumption…’ (emphasis added) it might be reasonable to read that as excluding industrial hemp,” he wrote in an email.
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Ohio State University law Prof. Douglas Berman, also executive director of the Drug Enforcement and Policy Center, noted the challenge that ballot initiative writers face: They must adequately define and explain their proposal in a limited space.
“So, you can’t write around every little thing,” he said, noting that it would’ve been helpful for Responsible Growth to contemplate hemp in its proposed amendment.
It can be hard to predict how courts would interpret a scenario like the one in Arkansas, Berman said. In some cases, they give wide latitude to measures approved by the electorate. In others, they’re careful not to read too far into a proposal.
He also noted that ballot-initiative opponents often offer stretched readings of proposals
“My sense is the courts would try to be sensible and respect people’s voice but not do it in a willy nilly way that turns over every apple cart that can be turned over,” he said.
*This story has been updated.
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