Cannabis and CBD Laws in South Dakota [In-Depth Guide]

The United States President signed the Hemp Farming Act into law in December 2018. It permitted the growth of industrial hemp in the U.S. Each state has to submit its program to the U.S. Department of Agriculture for approval. At the time of writing, almost every state had complied. What the Farm Bill did not do was federally legalize CBD.

As a result, each state is in charge of its CBD laws. It is a similar story with marijuana, which is a federally illegal substance. A growing number of states are creating MMJ programs, while others permit recreational use. Up until recently, South Dakota was not one of them. However, the November 2020 elections changed everything. Find out how in our guide to CBD and marijuana laws in South Dakota.

Does South Dakota Permit Marijuana?

The answer is ‘yes,’ but residents will have to wait. South Dakota residents voted in favor of medical and recreational cannabis programs on November 3, 2020.

Almost 70% of voters said ‘yes’ to Measure 26, the initiative to legalize MMJ in South Dakota. Constitutional Amendment A was much closer. However, 54.2% voted for it to pass, thus legalizing adult-use cannabis in the state. The state intends to begin both programs on July 1, 2021.

For a long time, South Dakota was one of the strictest states in America regarding cannabis use, possession, and sale.

It marks the end of a long journey for pro-cannabis campaigners in the state. For a long time, South Dakota was one of the strictest states in America regarding cannabis use, possession, and sale. It remains one of the few places that hasn’t decriminalized the possession of small amounts.

There was an attempt to change the penalty for the possession of under an ounce to a civil infraction in mid-2015. Yet the group involved couldn’t even get the 13,871 signatures necessary to put the measure on the ballot in 18 months!

The fact that voters were in favor of complete legalization came as a complete surprise to many outsiders.

What Are South Dakota’s Marijuana Rules?

Please remember that it remains illegal to buy, use, or possess cannabis in South Dakota until July 2021 at the earliest.

From then, adults aged 21+ can possess up to an ounce of cannabis. This includes a maximum of eight grams of marijuana concentrate. They will also be allowed to cultivate up to three plants and process the harvest. However, this is only legal if there are no marijuana retailers in their area.

The MMJ program will enable registered patients to possess up to three ounces of marijuana. They can also grow up to six plants. Getting certification will require visiting a physician and undergoing a consultation. The following are slated as qualifying medical conditions:

  • Seizures
  • Severe nausea
  • Severe, debilitating pain
  • Cachexia or wasting syndrome
  • Severe and persistent muscle spasms. These include spasms characteristic of multiple sclerosis (MS).

Otherwise, individuals will need to contact the state Department of Health. It has the power to approve any other medical condition.

Slow Progress & Obstacles

Those who think they can go to South Dakota in July to buy cannabis may be disappointed. Amendment A says the adult-use law goes into effect in July 2021. Yet, the state doesn’t have to implement industry rules until April 2022.

The South Dakota Governor, Kristi Noem, issued an executive order in January 2021 to prevent adult-use cannabis. She admitted being the driving force behind an effort to overturn Constitutional Amendment A.

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Finally, legislators are a long way behind in terms of creating the rules and laws for the new industry. By January 2021, the most recent legislative session had only filed one bill concerning cannabis.

It is extremely unlikely that recreational cannabis will be available in South Dakota in 2021. It is also doubtful whether the state will implement a sales program for MMJ by July 2021.

What Is the Situation with CBD in South Dakota?

South Dakota residents were also unclear as to the legality of CBD in their state until recently. In 2017, the state added CBD to its list of substances tightly monitored by the government. Lawmakers believed that CBD could cause addiction and was a substance with a high risk of abuse.

However, they exempted cannabidiol as a ‘drug product approved by the FDA’ in its definition. In essence, South Dakota permitted the use of Epidiolex. However, Senate Bill 22 reversed this decision and placed Epidiolex on Schedule IV of its controlled substances list.

There is an acknowledgment that patients with epilepsy can use cannabidiol if a doctor prescribes it.

In March 2019, the state’s Attorney General (AG), Jason Ravnsborg, issued a statement. He said that current South Dakota law made industrial hemp, and all forms of CBD, illegal. Epidiolex was the exception, yet even that drug was on the list of controlled substances.

There is also an acknowledgment that patients with epilepsy can use cannabidiol if a doctor prescribes it. Incidentally, a Schedule IV drug has a low potential for abuse. However, companies can only sell it freely if the FDA approves the drug.

It is Still a Gray Area

One would have expected Ravnsborg’s statement to clarify matters, but it did not. His chief of staff later said the statement is based on the definition of cannabis as a controlled substance. The AG believes that CBD oil is a product of the marijuana plant, the genus cannabis.

However, according to some South Dakota attorneys, these legislative changes resulted in a gap in SD’s controlled substance laws. They believe the gap means CBD oil product legality is open to interpretation.

The recent legalization of medical and recreational cannabis has not changed things. Remember, even if both programs go ahead, nothing will happen until July 2021 at the earliest. Therefore, nothing has changed regarding CBD laws in South Dakota.

Mark Vargo is the attorney for Pennington County State. He admitted that he doesn’t prosecute CBD oil cases. Vargo suggests that South Dakota law, as it is currently written, doesn’t criminalize CBD. This is as long as the product contains cannabidiol and not marijuana.

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At present, most South Dakotan lawyers look at each CBD oil charge on a case-by-case basis. They recommend that state residents approach the cannabinoid with caution.

If the MMJ law comes into force in July 2021, patients with a medical marijuana card can buy CBD oil. Likewise, the implementation of the recreational cannabis law will allow adults to purchase CBD freely.

However, please note that several major online sellers, such as PureKana, still don’t ship to South Dakota.

Does South Dakota Have an Industrial Hemp Program?

The answer is ‘yes,’ but it is a recent development. Governor Noem is notoriously anti-hemp. However, in late 2019, she indicated that she was ready to soften her position. On March 27, 2020, she signed House Bill 1008 into law. After a one-year-long standoff, South Dakota finally legalized industrial hemp, and the bill went into effect immediately.

In August 2020, the South Dakota Department of Agriculture submitted its industrial hemp plan to the USDA. The USDA approved this plan in October 2020. As a result, farmers in the state can start growing hemp in 2021.

What Does This Mean for the CBD Industry?

This law should have a significant impact on CBD oil’s legality in South Dakota. HB 1008 allows people to transport hemp through the state if they have a permit. It also states that anyone who travels with hemp is automatically consenting to searches to ensure they do not carry cannabis.

The new hemp growing law enables licensed processors to make industrial hemp products.

What’s interesting is that the new hemp growing law enables licensed processors to make industrial hemp products. These are defined as a finished consumer or manufactured product containing CBD that is packaged for individual sale. Such products must not contain more than 0.3% THC. This rule suggests that CBD IS legal in South Dakota as long as it comes from hemp and has a maximum of 0.3% THC.

Please note that the law also prohibits the sale of hemp for inhaling or smoking. Therefore, you can get CBD oil, edibles, and topicals. However, you are not permitted to smoke hemp flower or vaporize hemp juice.

Final Thoughts on CBD and Cannabis Laws in South Dakota

After many years of effort, campaigners have finally managed to achieve their medical marijuana legalization goal in South Dakota. What’s surprising is that the state’s voters also voted for recreational cannabis.

For years, South Dakota legislators resisted change. Even today, despite a majority of voters saying ‘yes’ to adult-use cannabis, lawmakers in the state are opposed to it. As of 2021, there is no guarantee that the recreational program will ever begin. If it does, sales are unlikely to start before 2022. While MMJ should become legal in July 2021, there are doubts over whether it will be ready for commercial sale.

Even the CBD rules remain shrouded in mystery. A statement from the Attorney General in 2019 suggested that the cannabinoid remained illegal in the state.

However, after a protracted battle, the state’s governor finally signed a law that brought an industrial hemp program to SD. The USDA approved it, which is good news for the state’s CBD sellers. The new bill also seems to suggest that CBD is now legal in South Dakota in certain forms. However, it is arguably better to remain cautious until there is official confirmation.

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