Arkansas Medical Marijuana 101 (Erika Gee Commentary)

by Erika Gee  on Thursday, Aug. 10, 2017 1:06 pm   5 min read

(Editor's Note: This is the condensed version of an article that originally appeared in the spring 2017 edition of The Arkansas Lawyer. It is published here with the permission of the Arkansas Bar Association. You can read the unabridged version here.)

After years of public discussion in Arkansas about medical marijuana, in November 2016, 53 percent of the voters approved a constitutional amendment to legalize it, now known as Amendment 98. 

Since that time, the state has been working furiously to enact laws and rules to create an entirely new regulatory structure and determine how licenses will be awarded to medical marijuana businesses. 

Amendment 98 legalizes the use of marijuana by patients who are certified by a physician to have one of 18 specific "qualifying" medical conditions, including cancer, Crohn's disease, fibromyalgia, peripheral neuropathy and intractable pain. It does not authorize growing marijuana at home, possession of marijuana by anyone who is not a registered as a qualifying patient or caregiver, or legalize the recreational use of marijuana. 

Three state agencies will oversee different aspects of the industry: the Medical Marijuana Commission (MMC), which will issue licenses to dispensaries and cultivation facilities; the Department of Health (DOH), which will register patients and caregivers and oversee product testing standards; and the Alcoholic Beverage Control Board (ABC), which has the broadest responsibilities, including security regulations, licensure of employees at dispensaries and cultivation facilities and overall enforcement. 

Here's a look at the basics of the law.

Patients and Caregivers

In order to become a qualifying patient, a patient over 18 must submit "written certification" from a physician establishing that the patient has a qualifying medical condition. 

A common misconception is that physicians will prescribe or otherwise affirmatively recommend that a patient should use medical marijuana, which many physicians are uncomfortable or unwilling to do. But the certification requires only that a physician confirm that the patient has been diagnosed with a qualifying condition. Residents of other states may also qualify to obtain medical marijuana while visiting in Arkansas, if the visiting patient presents a medical marijuana patient registration card from another state. 

All information regarding patients and caregivers is designated as confidential and cannot be released under the Arkansas Freedom of Information Act. This means that employers, landlords and other interested parties will not be able to confirm whether an individual is registered as a qualifying patient. The other regulating agencies may access registry information, if necessary, and the DOH is also authorized to verify registry status — but no more — to law enforcement personnel. 

Cultivation Facilities 

Amendment 98 authorizes up to eight cultivation facilities, which will serve as the primary source of all medical marijuana products in the state. 

The MMC has decided to initially license five cultivation facilities with the remaining three licenses held in reserve. The MMC is taking applications for the facility licenses; the deadline to submit an application is Sept. 18. 

The facilities can be located anywhere in the state, so long as they are not within 3,000 feet of an existing public or private school, church or daycare and they comply with local zoning, if any. They will have broad authority regarding the production of medical marijuana; they may cultivate, prepare, manufacture, process, package, sell and deliver marijuana to a dispensary. In fact, the only aspect of the market in which the facilities cannot participate is the retail sale of medical marijuana. 

The cultivation facilities will be chosen by the MMC based on its evaluation of a written application with extensive merit-based criteria. These criteria are intended to assess the applicant's experience and resources to run a cultivation facility. 

In order for their merit to be considered, applicants must first meet minimum requirements for residency, Arkansas ownership and criminal, professional and financial history and prove that they have substantial financial assets. The full application, including the scoring rubric for the merit criteria, is available at www.mmc.arkansas.gov.

The MMC is expected to begin evaluation of the applications at the beginning of October and to award the cultivation facility permits within a few months, perhaps before the end of 2017. In turn, medical marijuana will likely first become available to patients 3-6 months later, or in the spring/summer of 2018.

Dispensaries

Amendment 98 authorizes up to 40 dispensaries, dispersed throughout the state in rough proximity to the location of qualifying patients. 

The MMC has decided to initially license 32 dispensaries, with the remaining eight dispensary licenses distributed to address demand or diversity goals. Unlike cultivation facilities, the dispensaries will be awarded by geographical zone and, once awarded, can only be operated in the zone authorized. 

The MMC has divided the state into eight geographical regions, with four dispensaries in each region; the zone map can be accessed at www.mmc.arkansas.gov. The dispensaries cannot be within 1,500 feet of an existing public or private school, church or daycare and must comply with local zoning, if any.  

The dispensaries will also have broad authority on the retail side of medical marijuana, with the ability to "acquire, possess, manufacture, process, prepare, deliver, transfer, transport, supply, and dispense marijuana, marijuana paraphernalia, and related supplies and educational materials to a qualifying patient or designated caregiver." 

Unlike the limitation placed on cultivation facilities, dispensaries are authorized to engage in wholesale sales of marijuana to cultivation facilities and other dispensaries as well as retail sales to patients. Dispensaries will also have the ability to grow up to 50 "mature marijuana plants," plus 150 additional seedlings. 

Under a bill passed late in the 91st General Assembly, dispensaries will now also be required to designate a "pharmacist consultant," who will develop educational materials, policies and procedures and train the staff, as well as consulting with patients or staff by video or phone. The requirement of a pharmacist was enacted, in part, in recognition of the fact that patients will not have a physician's prescription and are not required to receive any medical guidance regarding their use of medical marijuana. 

The minimal standards and merit based criteria for the dispensary applications are nearly identical to the requirements for the cultivation facilities, other than a lower financial threshold, and can be viewed at www.mmc.arkansas.gov. The closing date for dispensary applications will also be Sept. 18.

Limitations

Amendment 98 created a wide-open product market, with no limits on the types of medical marijuana or delivery vehicles. Concern over the hazards of smoking and access by minors was a focus of this spring's legislative session and agency rulemaking and, as a result, there are some new limits on what may be sold.

Act 1024 prohibits dispensaries from selling any paraphernalia requiring combustion to be properly utilized, so dispensaries cannot offer pipes, rolling papers or similar devices to patients. Act 740 prohibits patients from smoking marijuana anywhere that smoking tobacco is prohibited, in the presence of a pregnant woman or someone under 14 years old, inside any motorized vehicle or in a place that is likely to cause a person who is not authorized to use it to become under the influence. It also prohibits patients under 21 from smoking marijuana at all.

The ABC rules prohibit the sale of any marijuana item with a shape or design likely to appeal to minors, including anything modeled after an item primarily consumed by or marketed to children, products in an animal, vehicle, person or character shape, items which resemble cookies or brownies, products that closely resemble familiar food or drink items, including candy, or any product incorporating commercially available candy, food or drink.


Erika Gee, a partner at the Wright Lindsey and Jennings law firm in Little Rock, represents clients in government relations, regulatory and compliance matters. Email her at EGee@WLJ.com.

 

 

Please read our comments policy before commenting.
Search