Ark. Code Ann. » Title 5 Chapter 64
Arkansas Code Annotated

Ark. Code Ann. § 5-64-201 (2026)

Secretary's duties

✓ current as of May 2026
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        1. The Secretary of the Department of Health shall administer this chapter and may add a substance to or delete or reschedule any substance enumerated in a schedule under the procedures of the Arkansas Administrative Procedure Act, § 25-15-201 et seq.
        2. The secretary may promulgate without action or approval of the State Board of Health an emergency rule under the procedures of the Arkansas Administrative Procedure Act, § 25-15-201 et seq., that adds a substance to or deletes a substance from a schedule or reschedules a substance.
        3. If the secretary adds, deletes, or reschedules a substance through an emergency rule under the procedures of the Arkansas Administrative Procedure Act, § 25-15-201 et seq., the emergency rule may be effective for no longer than one hundred eighty (180) days.
      2. However, the secretary shall not delete any substance from a schedule in effect on July 20, 1979, without prior approval by the Legislative Council.
    2. In making a determination regarding a substance, the secretary shall consider the following:
      1. The actual or relative potential for abuse;
      2. The scientific evidence of its pharmacological effect, if known;
      3. The state of current scientific knowledge regarding the substance;
      4. The history and current pattern of abuse;
      5. The scope, duration, and significance of abuse;
      6. The risk to public health;
      7. The potential of the substance to produce psychic or physiological dependence liability; and
      8. Whether the substance is an immediate precursor of a substance already controlled under this subchapter.
  2. After considering the factors enumerated in subsection (a) of this section, the secretary shall make findings with respect to the factors and issue a rule controlling the substance if he or she finds the substance has a potential for abuse.
  3. If the secretary designates a substance as an immediate precursor, a substance that is a precursor of the controlled precursor is not subject to control solely because it is a precursor of the controlled precursor.
    1. If any substance is designated as a controlled substance under federal law and notice of the designation is given to the secretary, the secretary shall similarly control the substance under this chapter after the expiration of thirty (30) days from publication in the Federal Register of a final order designating a substance as a controlled substance unless within that thirty-day period the secretary objects to inclusion.
      1. If the secretary objects to inclusion, the secretary shall publish the reasons for objection and afford any interested party an opportunity to be heard.
      2. At the conclusion of the hearing, the secretary shall publish his or her decision.
      3. Any person aggrieved by a decision of the secretary is entitled to judicial review in the Pulaski County Circuit Court.
    3. Upon publication of objection to inclusion under this chapter by the secretary, control under this chapter is stayed until the secretary publishes his or her decision or, if judicial review is sought, the inclusion is stayed until adjudication of the judicial review.
    4. If notice has been given to the secretary that the United States Food and Drug Administration has designated, rescheduled, or descheduled a marijuana-derived substance under federal law and approved for marketing the marijuana-derived substance as a prescription medication, the secretary shall consider the designation, rescheduling, or descheduling of the marijuana-derived substance under this chapter.
  5. Authority to control under this section does not extend to distilled spirits, wine, malt beverages, or tobacco.
  6. The secretary shall schedule gamma-hydroxybutyrate and its known precursors and analogs in a manner consistent with the procedures outlined in this section.

History. Acts 1971, No. 590, Art. 2, § 1; 1973, No. 186, § 1; 1979, No. 898, § 3; A.S.A. 1947, § 82-2602; Acts 2001, No. 320, § 2; 2005, No. 1994, § 302; 2011, No. 587, § 1; 2017, No. 440, § 1; 2019, No. 910, § 4831.

A.C.R.C. Notes. Acts 2001, No. 320, § 1, provided:

“(a) Gamma-hydroxybutyrate (‘GHB’) was not scheduled as a controlled substance by the Federal Drug Enforcement Administration or by the Director of the Arkansas Department of Health prior to 1999. Concerned about the potential for the substance's abuse, the Eighty-second General Assembly designated GHB as a Schedule VI controlled substance.

“(b) Subsequently, the Drug Enforcement Administration classified GHB as a Schedule I. In addition, the final rule of the Drug Enforcement Administration places Food and Drug Administration approved products containing GHB into Schedule III, if or when they are approved.

“(c) Since the legislature classified GHB as a schedule VI substance, the Director was precluded from scheduling GHB in a manner consistent with the scheduling designated by the Drug Enforcement Administration. As a result, criminal sanctions for the possession with the intent to deliver GHB are not as severe as other substances possessing similar harmful and abusive characteristics.

“(d) It is the purpose of this act to allow the director to adopt the Drug Enforcement Administration's scheduling of GHB pursuant to Arkansas Code 5-64-201.”

Amendments. The 2001 amendment added (f).

The 2005 amendment deleted “subchapters 1-6 of” preceding “this chapter” in (a) and three times in (d); inserted “or she” in (b); and inserted “or her” preceding “decision” in (d).

The 2011 amendment substituted “Department of Health” for “Division of Health of the Department of Health and Human Services” in (a)(1)(A)(i); and added (a)(1)(A)(ii) and (iii).

The 2017 amendment added (d)(4).

The 2019 amendment substituted “Secretary’s” for “Director’s” in the section heading; substituted “Secretary” for “Director” in (a)(1)(A)(i); and substituted “secretary” for “director” throughout the section.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

Alcoholic Beverages.

Where school board rule required automatic expulsion for students using “narcotics or other hallucinogenics, drugs, or controlled substances classified as such by Act 590 of 1971” (subchapters 1-6 of this chapter), alcohol was not a “controlled substance” under such rule since it is expressly exempted from the operation of the act by subsection (e) of this section. Board of Educ. v. McCluskey, 458 U.S. 966, 102 S. Ct. 3469, 73 L. Ed. 2d 1273 (1982).

Delegation of Authority.

Although subsection (d) provides that if a substance becomes controlled under federal law it shall also become controlled under state law, that same subsection has also always given the Commissioner the authority to reject the listing of any federally controlled substance; thus, there was no unlawful authority or delegation of legislative power given to the federal government to control the state schedules of controlled substances. Curry v. State, 279 Ark. 153, 649 S.W.2d 833 (1983).

Schedules.

Schedule of controlled substances is a regulation promulgated by a state agency pursuant to statute and in accordance with state procedural requirements. The schedule or agency regulation is a part of the substantive law the trial court must determine and then apply to the facts of the case before it. Washington v. State, 319 Ark. 583, 892 S.W.2d 505 (1995).

Cited: Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982); Benjamin v. State, 102 Ark. App. 309, 285 S.W.3d 264 (2008).

Notes of Decisions
Cited in 4 cases, 1995–2014 · leading case: Washington v. State, 892 S.W.2d 505 (Ark. 1995).
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Washington v. State, 892 S.W.2d 505 (Ark. 1995). · cites it 4× “As observed in Johnson, the Director of the State Health Department is given authority to designate controlled substances pursuant to Ark. Code Ann. § 5-64-201 (Repl. 1993). Section 5-64-201 requires the Director’s schedules to be adopted in accordance with the Arkansas…”
Thomason v. State, 208 S.W.3d 830 (Ark. Ct. App. 2005). · cites it 4× “Under Arkansas Code Annotated section 5-64-201 (Supp.2003), the Director of the Arkansas Department of Health, with the approval of the Legislative Council, is charged with the responsibility of identifying controlled substances and classifying them in Schedules I through VI.”
Benjamin v. State, 285 S.W.3d 264 (Ark. Ct. App. 2008). · cites it 2× “The Director of the State Health Department is given authority to designate controlled substances under Ark. Code Ann. § 5-64-201 (Repl. 2005). Mr.”
Brown v. State, 2014 Ark. App. 474, 442 S.W.3d 8. · cites it 4× “2d 686 (1982) ], the Director of the State Health Department is given authority to designate controlled substances pursuant to Ark.Code Ann. § 5-64-201 (Repl.1993). Section 5-64-201 requires the Director’s schedules to be adopted in accordance with the Arkansas Administrative…”
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