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Puff, puff, pass? 

Some fear dueling medical cannabis initiatives will lead to the failure of both at the ballot box.

AMENDMENT SUPPORTER: David Couch. - BRIAN CHILSON
  • Brian Chilson
  • AMENDMENT SUPPORTER: David Couch.

The campaign for medical marijuana in Arkansas was a squeaker in 2012, with the outcome — and the availability of a medicine that supporters claim is vital for chronically ill patients — failing by less than 2 percent of the vote.

Since, then, "medijuana" has become more accepted. Twenty-three states and the District of Columbia have enacted medical cannabis laws, and four states and D.C. have legalized recreational marijuana. If either or both of two approved initiatives — one an initiated act and the other a constitutional amendment — manage to gather enough signatures to make the ballot, signs would seem to point to a win for marijuana as medicine in Arkansas in 2016, making us the first Southern state to approve medical cannabis. But the author of one of the measures cautions that fundamental differences between the two proposals, should they both wind up on the ballot, could lead to voter confusion and a situation where the supporter vote could be split, resulting in the failure of both. The author of the other proposal, meanwhile, says that his research suggests Arkansas voters simply won't pass any initiative that includes a provision for patients to "grow their own."

(Another proposal, the Arkansas Hemp and Cannabis Amendment, would establish the right to grow cannabis, but allow the legislature to determine rules for its use. It's thought to be a longshot to gain enough signatures to make the ballot.)

Melissa Fults is campaign director for Arkansans for Compassionate Care, the group currently gathering signatures for the 2016 Arkansas Medical Cannabis Act. She said that a competing ballot initiative by Arkansas attorney David Couch doesn't go far enough to ensure affordability and accessibility for lower-income patients, primarily because it doesn't include the ability of patients far from dispensaries to grow their own marijuana.

Arkansans for Compassionate Care recently announced that it has collected 68,000 raw signatures toward getting its proposal on the ballot, using only volunteers to gather signatures. Fults said the group has been collecting signatures since September 2014. In 2016, 67,887 verified voter signatures are required for an initiated act to make the ballot. The deadline to turn in signatures is the first week in July, but Fults said the group plans to turn in its petitions by the end of April.

Fults said the Compassionate Care initiative is more patient-friendly than the proposal by Couch by making medical cannabis both affordable and available. The ballot initiative allows each licensed dispensary to set up both an attached grow center and an off-site cultivation center; caps the cost of patient licenses at $50; and allows any licensed patient who lives more than 20 miles from a dispensary to grow a limited number of cannabis plants or have them grown by a designated caregiver.

"When you look at both initiatives out there, ours is clearly aimed at protecting patients and making sure patients have availability and affordability," she said. "To us, those are two of the main things. We want people who sell the product to make money, but bottom line we want the patients to be able to afford it and to have access to it."

Couch's proposed constitutional amendment stipulates four to eight designated cultivation centers, with limited grow by each dispensary and no provisions for patients to grow their own. "The people that own the cultivation centers are going to make a killing," Fults said. "There's a maximum [licensing fee] for the dispensaries and the cultivation centers for their licenses, but there's no maximum for patient licenses, and only 10 percent of the sales tax ... will go to pay for the program. So that program has got to be paid for with license fees and penalties. With the limited number of cultivation centers and dispensaries and a very limited amount [or cost] for their licenses, the burden is going to fall on the patients to pay for the program. It's just not designed to protect patients, as far as I'm concerned."

Fults stressed that even with her group's 20-mile rule, the number of patients allowed to grow their own will be "very limited," and the Compassionate Care proposal stipulates that the cultivation by patients will be regulated under the same rules as cultivation by dispensaries, including being subject to random inspections by the state. While grow-your-own may have been a significant reason why the medical marijuana initiative failed — albeit narrowly — in 2012, Fults said perceptions of cannabis as a medicine have changed since then. She said that if the Compassionate Care proposal were the only one on the ballot, it would pass easily in 2016. If both the ACC initiative and the one authored by Couch are on the ballot, she believes both will fail.

"It's been proven over and over and over, and even the national groups are having a coronary over it," she said. "What happens is that, when both of them get on the ballot, naturally the opponents are going to vote against both of them, straight down the line. With the people who are supportive, the ones who don't know the difference will probably vote for both. ... The ones that do know the difference, some will vote for David's for whatever reason, and some will vote for ours. That will split the vote."

Couch, who worked with Fults on the 2012 medical cannabis campaign, said that following the defeat in 2012, most supporters of the campaign met and agreed that grow-your-own should not be a part of their next run at an initiative. When Fults' group wouldn't commit to that provision, they parted ways.

Couch said that multiple polls, including his own, show that while a clear majority of Arkansans are in favor of medical marijuana, they support it only if it is strictly regulated like a prescription drug.

"The compassion argument wins," Couch said. "Jay [Barth] polled it at 80 percent. The U of A polled it, it was like 70 percent. I polled the same thing. I polled medical with grow, without grow and recreational. Honestly, there's not much of a statistical difference between medical with grow-your-own and recreational [laws]. People basically see that as the same. It was polling in the mid-40s." Meanwhile, medical marijuana without a provision for grow-your-own, Couch said, polled at around 65 percent of likely voters. Couch said he believes large numbers of voters just don't trust that patients and their designated caregivers who cultivate their own cannabis will discard the portion of their harvest that goes beyond the amount a patient would be legally allowed per month under the ACC proposal.

"In a perfect world, I would support Melissa's concept 100 percent. I think people should be able to grow their own," he said. "Unfortunately, I don't believe the people of the state of Arkansas will support that."

Couch said he looked at other states that successfully passed medical marijuana laws and tried to craft a plan like those, plans that would create a self-supporting system and not require a big regulatory investment by the state. He said the state has estimated it would require 40 to 50 new inspectors at the state Department of Health to regulate grow-your-own, even if the number of growers was limited by the 20-mile rule in Fults' proposal.

Couch disagrees with the idea that two proposals making the ballot will spell doom for both. Most supporters, he said, will vote for both, just to make sure one passes.

"I would think that anybody who is for [medical cannabis] would vote for both of them," he said. "To me, that's the more logical outcome. If you want to ensure that sick people get the medicine they need, then you're going to vote for both of them."

Couch said he has raised funds to hire signature collectors to gather the nearly 85,000 signatures needed to make the ballot, and is planning to roll out a voter-education campaign if his proposal makes the cut. He said he should have the signatures required to make the ballot within 60 days. He said the other benefit of his initiative is that, if passed, it will add an amendment to the state Constitution guaranteeing medical cannabis. "With two-thirds of the General Assembly, [Fults' initiated act] can be changed or whatever they want to do," Couch said. "The reason I decided to do a constitutional amendment this time is I just don't trust the members of the General Assembly when — even if the people of Arkansas pass medical marijuana — with a two-thirds vote, they can make it illegal or put whatever restrictions on it."

If both made the ballot and passed, the one that got the most votes would be enacted, Fults said.

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