On Nov. 8, Arkansans will see two different medical marijuana initiatives on their ballots: the Arkansas Medical Cannabis Act (AMCA) and the Arkansas Medical Marijuana Amendment (AMMA).
While both would legalize medical marijuana and contain similar provisions, there are distinct differences between them, particularly in the breadth of behavior legalized and the regulatory plan to oversee cultivation and distribution.
This is an Opinion
First, let's take a look at the path to the ballot for these two measures.
The AMCA, backed by Arkansans for Compassionate Care, has been certified by the attorney general and the secretary of state to go to a vote this fall. It has recently become the target of a lawsuit arguing that the ballot title was misleading to voters in that it did not accurately describe certain aspects of the measure. The case is pending before the Arkansas Supreme Court and, if successful, would prevent counting of any votes cast for this initiative.
More: Read the full AMCA here.
The AMMA, backed by Little Rock attorney David Couch, was certified by the attorney general, but its organizers did not clear the initial hurdle of 84,859 verified signatures on the petition to be placed on the ballot. They were granted another 30 days to complete the effort, and today the secretary of state’s office certified the proposal for the ballot based on the additional signatures submitted on Aug. 19.
More: Read the full AMMA here.
The two provisions are more alike than different. Both would legalize the use of marijuana by patients with "qualifying" medical conditions, as certified by a physician, and neither would legalize the recreational use of marijuana.
Both would also create a regulatory structure within state government, centered on the state Department of Health, and require patients and other participants in the medical use of marijuana to be licensed or registered with the state.
Both would also allow for formal designation of "caregivers" to assist patients with consumption of marijuana.
Many of the smaller details in each provision are also very similar, if not identical to one another. This is no surprise, considering that the organizers of both measures worked together on the 2012 medical marijuana initiative voters narrowly defeated. Since then, they split.
The primary point of divergence in the 2016 provisions is that AMCA would authorize qualifying patients to grow marijuana at home if they live more than 20 miles away from a distribution center, called a "Cannabis Care Center" in the initiative. The AMMA does not allow patients to grow marijuana at home.
Another significant difference is the scope of what would be qualified as a medical use of marijuana.
The AMCA lists 38 separate medical conditions as sufficient to qualify a patient to have access to medical marijuana, including autism, bulimia, ADD/ADHD, general anxiety disorder and chronic insomnia.
The AMMA lists 12 medical conditions as qualifying. In addition to the list of specific conditions, the AMCA would also qualify "pain that has not responded to ordinary medications, treatment or surgical measures for more than three (3) months," while the AMMA qualifies pain after 6 months of no response.
Regulating Medical Marijuana
The regulatory structure under each also varies significantly.
The AMCA structure is focused on access, requiring distribution centers to be nonprofit and authorizing one center for every 20 pharmacies operating within the state (currently estimated by organizers to allow 38 centers). It also contains provisions that would authorize patients to proceed as if they were registered or as if they were authorized to grow at home if the state Department of Health fails to act on an application within 45 days. All regulatory authority under this provision is placed with the health department.
With the AMMA, the regulatory structure is more complex. It would create a new state commission, called the Medical Marijuana Commission, which would have overlapping regulatory authority along with the Department of Health and the Alcoholic Beverage Control Division of the Department of Finance and Administration.
The AMMA also authorizes at least 20 — but no more than 40 — dispensaries and a maximum of four dispensaries per county. And it prohibits cities and counties from barring the operation of a dispensary or cultivation facility or enacting any zoning regulations regarding them, unless the regulations also apply equally to retail pharmacies.
Finally, while both measures would collect sales tax on marijuana, all the revenue under AMCA would be used to operate the regulatory structure it creates, with any remaining revenue used to subsidize "affordable dispensing" on a sliding scale to those without sufficient income.
AMMA's sales tax structure would send 30 percent to state general revenue, with the remainder devoted to the medical marijuana regulatory structure and vocational training programs.
What's at Stake
Although the governor, the state surgeon general and many prominent community organizations oppose the medical marijuana measures, the latest polls indicate that a majority of Arkansans support a medical marijuana provision.
If this is the case, voters in November will likely find that untangling the competing measures on the ballot will present a challenge.
For the voter who is a medical marijuana supporter, deciphering the details of these complex provisions and deciding how to vote are particularly important, because under Article 5, Section 1 of the state constitution, if both initiatives pass and they are in conflict, only the measure receiving the most votes will become law.
Erika Gee, an attorney of counsel with the Wright Lindsey & Jennings law firm in Little Rock, represents clients in government relations, regulatory and compliance matters. Email her at EGee@WLJ.com.