Despite judge’s ruling, Arkansas’ medical marijuana industry continues business as usual

Two weeks ago, a judge struck down dozens of Arkansas’ medical marijuana restrictions, but those expecting major changes are still waiting.

Dispensaries have not started selling pre-rolled joints. 

Doctors aren’t writing patients recommendations for a cannabis card through video consults.

And there hasn’t been an influx of high-THC edibles.

The Pulaski County judge’s order has created an odd environment where marijuana businesses are continuing to comply with laws that have been deemed unconstitutional.

Instead, they’re proceeding with cautious optimism.

“Circuit Judge Chip Welch issued a ruling voiding 27 laws passed by previous General Assemblies,” Bill Paschall, the executive director of the Arkansas Cannabis Industry Association, wrote to members after the June 15 ruling. “While this is a great victory for the industry, I encourage you to continue with business as usual as the appeals process plays out. Attorney General Griffin has stated he will appeal, and ACIA legal advisor Erika Gee anticipates Griffin will seek a stay of the ruling, which the Arkansas Supreme Court is likely to grant.”

Indeed, Jeff LeMaster, a spokesman for Attorney General Tim Griffin, confirmed to the Advocate that office attorneys are preparing an appeal and plan to seek a stay of the decision. 

“Absent further guidance, the state’s medical marijuana industry should continue to operate as usual,” LeMaster said.

Would state regulators take enforcement action against a marijuana business that decided to disregard the laws that have been struck down?

“With the post judgment process open and different factors associated with these amendments, we can’t speculate whether ABC could take action in this scenario,” said Scott Hardin, a spokesman for the Alcoholic Beverage Control Division, which regulates Arkansas cannabis industry.

Medical marijuana was legalized in Arkansas in 2016 through a ballot initiative that amended the state Constitution. 

The amendment approved by voters set up some guardrails, like capping the number of dispensaries and cultivators allowed in the state, but it left the majority of regulations to the Arkansas Department of Health and divisions of the Arkansas Department of Finance and Administration.

In the years after Amendment 98 passed, the Arkansas General Assembly passed dozens of laws placing additional restrictions on medical marijuana businesses, advertising and patients. 

Those include:

• Act 1024 of 2017, which outlawed the sale of combustible marijuana like pre-rolls, pipes and bongs.
• Act 1023 of 2017, which required child-proof packaging and capped the amount of THC allowed in edible products at 10 mg.
• Act 593 of 2017, which allowed employers to exclude otherwise qualified patients from “safety-sensitive positions.”

Pulaski County Circuit Judge Chip Welch decided the General Assembly didn’t have the authority to enact those three laws, along with 24 others.

In fact, the ruling went further to answer a question that legal scholars have debated: The state Legislature cannot amend the Arkansas Constitution unilaterally and must refer any amendment to the ballot for a vote of the people. (The implications of the Supreme Court agreeing with this holding would go well beyond the Medical Marijuana Amendment.)

Until an appeal is filed and the Arkansas Supreme Court grants or denies the state’s request for a stay of Welch’s ruling, Arkansas will be in a legal gray area. 

State agencies are even reluctant to give straight answers to questions about what is currently legal. Asked this week whether it was legal for patients to obtain a doctor’s certification that they suffer from one of Arkansas’ qualifying conditions for medical cannabis via telemedicine, Health Department spokeswoman Meg Mirivel simply said: “There is pending litigation on this issue.”

If the Supreme Court upheld the ruling, it wouldn’t automatically abolish all of the General Assembly’s restrictions because many were also adopted as rules by the Alcoholic Beverage Control Division. Those rules would have to be taken off the books.

That includes the prohibition on pre-rolls and combustibles. A lift of the state’s prohibition on pre-rolls is among the most lucrative possibilities for Arkansas’ cannabis businesses. In other states, pre-rolls are among the most popular products. 

Medical marijuana dispensaries and cultivators would also be eager to be able to more freely advertise and refer patients to doctors who provide marijuana card certifications through telemedicine appointments. 

“Many of the legislative amendments are issues that are specifically addressed in the ABC and MMC rules and are appropriate under Amendment 98,” said Nate Steel, a former state legislator and one of the owners of Good Day Farm, the plaintiff that sued over the laws. “The issue here concerns the changes to Amendment 98 that are inconsistent with what the voters passed in 2016. 

“We hope to get clarity on that going forward.”

This story was updated to clarify the Health Department’s response about medical marijuana patient telemedicine consults.