JONESBORO, Ark. – The Jonesboro Police Department took the position in a Wednesday evening Facebook post that medical marijuana must be stored by patients “at all times” in a labeled container.
The label requirements are actually, by law, for dispensaries only, according to the ABC Board Director who was cited by the prosecutor during an interview last week with NEA Report.
Wednesday night, as part of a series of posts about medical marijuana in Arkansas, JPD posted to its Facebook page a section on labeling standards. The information required to be on the label is extensive. However, the conflict is in who is required to keep the pot labeled.
“All medical marijuana must be kept in a qualifying labeled container at all times,” the post said.
JPD’s position was that patients must label their pot with the extensive list of requirements. This was contradicted last week by several sources.
2nd Judicial District Prosecuting Attorney Scott Ellington told NEA Report on May 16 there was no language in the law requiring pot to be kept in a labeled container, citing his conversation with the ABC Director Doralee Chandler. The ABC Board regulates medical marijuana, making the director the top authority on the matter in the state.
Ellington had seemed to be under a similar impression as JPD’s most recent post until his conversation with the ABC Director caused a total shift.
“According to the ABC Director, there is not language in the law requiring pot to be kept in the container it was sold in,” said Ellington May 16. “It’s a good idea but not required.”
NEA Report reviewed the laws and we have been unable to find any requirements for patients. Under the labeling section of the MMJ Emergency Rule 4/27/2017, cited in JPD’s post, all of the requirements are for dispensaries or cultivators only and apply only before the sale.
W. Whitfield Hyman, an attorney with King Law Group PLLC in Forth Smith, was following the conversation on JPD’s Facebook page. He agreed that there appeared to be no requirement under the wording of the law that required patients to keep their medical marijuana labeled.
“Otherwise, logically, someone would be breaking the law taking the marijuana out of their own container,” Hyman said.
NEA Report spoke with JPD Police Chief Rick Elliott late Wednesday. Before we had made him aware of the conflicting information, he signaled he was not looking to make aggressive arrests in this realm.
“If you got your card, and you got this, and it’s iffy our take would be cite them a ticket and go explain to the judge,” Elliott said.
When we told him of the information we received from the prosecutor, via the ABC director, Elliott said he would go back and review the law, as this had not been his understanding of it.
“I think the best thing and what we’re going to do is get together with the sheriff and I and the prosecutors,” Elliott said, receptively. “If their stance is, ‘We’re not going to prosecute this case because it’s not in a labeled bottle,” why waste our time with it? If that’s what the statute reads, then so be it. Folks just hang on. We, in law enforcement, are still tweaking some things. Hopefully what we do will spread across the state to other agencies. We’re a bigger town, a bigger agency, and lot of times, people look at our standards and adopt them. We just want to be fair to everybody involved and take a good look at it and be objective and come out with a policy that applicable.”
While it would seem that Craighead County will soon have an official policy on the matter, it’s not necessarily going to be the same for West Memphis, the chief pointed out. Last week, a man was arrested for 1.5 grams of medical marijuana who had his MMJ card.
The chief also encouraged people who might encounter an officer while being in one of these types of situation to be patient and bear with the officer. He said they’re going to ask a few questions but if the subject is being cordial, the officer will probably give them a citation or a warning and let them go about their day.
“This is all new so we will go by what the law is saying and we will make some tweaks here and there because this is what the people voted on,” Elliott said.
He added that, if it’s not clear in statute, next time the General Assembly goes into legislation session, law enforcement would be likely to ask them to clear it up.
A major source for the confusion appears to be in a FAQ which incorrectly states that the Arkansas Medical Marijuana Act only protects patients with marijuana in labeled containers. This FAQ is not law or statute but was written by an unknown author who incorrectly interpreted state law: The word “label” only appears twice in the AMMA: once for dispensaries and once for labeling standards to be set by the MMJ Emergency Rule of 4-27-2017. That document, as stated above, set rules for only dispensaries and cultivators pre-purchase.
It may be a prudent move for state lawmakers to consider. Without any legal authority to track the purchasing origin, Medical Marijuana cards could be a free pass to buy marijuana from a drug dealer. While the dealer would still face felony charges for possession with intent to deliver, the MMJ card gives a patient a legal right to possess marijuana. With no laws addressing a legal patient’s burden of proof of where they purchased the pot, an unintentional legal loophole may exist that cuts legal cultivators and dispensaries out of the game.