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

If you are a fan of confusing laws, you will love CBD legislation in the United States! The President signed the Farm Bill into law in December 2018. It permitted the growth of industrial hemp in the United States. Each state has to submit its program to the U.S. Department of Agriculture for approval. At the time of writing, all but a handful of states had complied.

What the Farm Bill did not do was federally legalize CBD. Despite what many people think, the government has not permitted it, nor has the FDA approved it. The latter agency has only approved a synthetic version of CBD, called Epidiolex. Far from establishing a framework for the sale and purchase of CBD in America, all the Farm Bill has achieved is to cause complete confusion.

With no official legislation or oversight from the government, the CBD industry has descended into a free-for-all. Each state applies its own rules, and the result is chaos. Apart from a handful of states, the CBD market is unregulated. There are also specific locations where it is technically illegal to buy or sell CBD. Yet even in these areas, CBD sellers continue to profit; only seldom do the authorities intervene.

At WayofLeaf, we are trying hard to navigate the tangled web of CBD legislation in America. That is why we continue to create state-by-state guides. Today, it is the turn of South Dakota, yet another place where CBD rules are far from clear.

Does South Dakota Permit Marijuana?

The short answer is ‘NO.’ Indeed, South Dakota is one of the strictest states in America when it comes to cannabis use, possession, and sale. It is one of the few places that hasn’t even 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!

In November 2017, marijuana activists tried to get an MMJ initiative on the 2018 ballot. While they received the requisite minimum of 15,000 signatures, some of them were deemed invalid. At present, the possession of under two ounces is a misdemeanor but could result in a one-year prison sentence. If caught with more than this amount, it is an automatic felony charge. The sale of more than half an ounce is also a felony!

However, there is hope on the horizon. A volunteer group called New Approach South Dakota, who failed in 2018, finally got an MMJ initiative on the ballot for 2020. SD residents will get the chance to vote on Measure 26 during the General Election. The initiative proposes to permit medical cannabis in South Dakota, and also allow cardholders to grow plants at home.

What Is the Situation with CBD in South Dakota?

If the CBD issue is anything to go by, it is unlikely that the state will vote ‘yes’ on Measure 26. That said, support for MMJ is growing. South Dakota has resolutely refused to allow anything related to cannabis or hemp to become legalized for a long time. In 2017, the Senate introduced a bill that would allow residents to have a small amount of weed (five grams) if they have an MMJ card issued in another state. Three years on, however, and there is little progress on this matter.

Also, in 2017, the state added CBD to its list of substances tightly monitored by the government because they can cause addiction and are at 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.

To get an insight into how anti-hemp South Dakota is, you need only look at Senate Bill 22. The state government passed this bill in early 2019. It reversed its decision from two years earlier and placed Epidiolex on Schedule IV of its controlled substances list. 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 is the exception, yet even that drug finds itself on the list of controlled substances! There is also an acknowledgment that patients with epilepsy can use cannabidiol if a doctor prescribes it. In case you were wondering, a Schedule IV drug has a low potential for abuse. However, you can only sell it freely if the FDA approves the drug.

Mind the Gap

One would have expected Ravnsborg’s statement to clarify matters, but it did not. His chief of staff later said his 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 plant.

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

He goes on to say the South Dakota statute doesn’t state that CBD oil made from the seeds of hemp or marijuana is illegal. Vargo isn’t happy that the state’s executive branch is “governing by presumption.” The differing opinions mean that residents of Pennington County have no idea if they can legally possess CBD. They also don’t know if the AG’s Office can prosecute cases if CBD is apparently illegal.

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

Are There CBD Arrests in South Dakota?

A few CBD stores are operating freely in locations such as Sioux Falls. However, several businesses have elected to remove cannabidiol products from their shelves. We have heard of cases where buyers and sellers are getting arrested in South Dakota. In 2019, an Alaskan resident was arrested for possession of CBD oil at the Sioux Falls Regional Airport. He faced a Class 5 felony charge and possible prison time. Over a year on, and we have not heard any update on this case.

Melissa Mentele, the executive director of New Approach South Dakota, is adamant that CBD is not illegal. Indeed, she said it was “as illegal as the water coming out of your tap.” What’s crazy is that there is significant demand for CBD oil in South Dakota.

Joshua Sopko was one of the few people to admit selling CBD in the state back in 2019 openly. He said he began selling it in his store, ‘Juniper Apothecary,’ because customers consistently asked for it. Unfortunately, many people were scared to buy it in case they were arrested. At the time of writing, major online sellers, such as PureKana, don’t ship to South Dakota.

Does South Dakota Have an Industrial Hemp Program?

The answer is ‘yes,’ but it is a recent development. Given the state’s resistance to CBD, it is no surprise to learn that it was against hemp cultivation for a long time. While most states permitted the crop, South Dakota stood firm in its resistance. The state governor, Kristi Noem, is notoriously anti-hemp and fought against those who wanted to see the plant in SD.

In late 2019, Noem 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. It includes $3.5 million in funding to set up the program. However, this financial injection is subject to change as there is a special session slated for June 2020 to determine the state’s budget.

Also, prospective hemp cultivators must wait until the United States Department of Agriculture has approved the program to begin growing. At the time of writing, the USDA has not yet acted.

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 are not carrying cannabis.

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 get a medical marijuana bill on the ballot in South Dakota. Despite the difficulties in getting enough signatures, early polling suggests that Measure 26 could succeed. It is potentially a remarkable story, not least because of the state’s historic anti-cannabis stance.

Indeed, it is even resisting the legality of CBD oil. A statement from the Attorney General in 2019 suggested that the cannabinoid remained illegal in the state. There were also a few arrests for possession of CBD in South Dakota.

However, after a protracted battle, the state’s governor finally signed a law that brought an industrial hemp program to SD. It still requires USDA approval, but that is likely to happen in 2020. The new bill 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.