Voters in November made it clear that recreational marijuana use is prohibited in South Dakota, but legal alternatives are readily available throughout the state.
Hemp farming is now sanctioned by the 2018 Farm Bill. Delta-8 and delta-10 tetrahydrocannabinol (THC) are two cannabinoids found in the hemp plant, and this legislation effectively legalised these compounds.
Each, when consumed in large enough quantities, can provide an effect that is nearly identical to that of conventional marijuana. Because of their origin in a lawful plant, these chemicals are permitted in all 50 states, including when manufactured.
Five years have passed since stores in South Dakota and elsewhere began selling the compounds in candies and other foods, oils for use in vaping devices, and inert smokable hemp. Products can be infused with sufficient THC variations to function as a functional substitute for marijuana when used in place of its medical or recreational use.
Because of this, there is some tension in Pierre around drug policies.
Products containing its molecular cousins are legal to buy and consume in South Dakota for anyone over the age of 21. This is in stark contrast to the heated debates surrounding the rules and regulations of medical marijuana and allowable levels of delta-9 THC, the federally banned cannabinoid found in the marijuana plant.
Legalization of both recreational and medical marijuana use, as well as hemp-based products, means “the war for cannabis legalisation is won,” according to Rod Kight, a North Carolina attorney who wrote the Hemp Industry Association’s position paper on D8 and D10 in 2021.
“Cannabis is legal in one form or another across the country,” Kight stated. We now have cannabis legalisation. Just because it’s there doesn’t mean anyone will see it as such.
D8 and D10 goods can be purchased in smoke shops in Sioux Falls with names like Roll N’ Smoke, High-End Glass Gallery, and Chasing Clouds, alongside the usual fare of roll-your-own cigarette kits, nicotine vape pens, and glass pipes. They can be purchased at grocery stores, convenience stores, and liquor stores around the state of South Dakota, not just in the city of Sioux Falls.
There is a delta-8 store in Pierre, less than a block away from the office where current Attorney General Marty Jackley worked as a private attorney before being elected to his second term as the state’s top prosecutor.
According to Kight, states are currently debating how to control the spread of this new industry’s products. In a “last gasp effort” to maintain prohibition, more than a dozen states have moved to ban the items, which Kight and others have successfully challenged in court.
Age limitations, as well as labelling and safety testing requirements, have been implemented by several states. That, according to Kight, is where the business thinks things will end up in every state.
A product like “bathtub gin” is not something we want to see on the market. We’re looking for items that adhere to GMPs, have honest labels, and can be purchased in stores, dispensaries, or online with the same degree of confidence as, say, vitamin C or canned spinach.
South Dakota Regulation
South Dakota lawmakers have spent the last few years playing catch-up, and they’ve mostly done it by enacting new regulations. Rep. Taylor Rehfeldt (R-Sioux Falls) successfully pushed legislation to prohibit sales to anybody under the age of 21 in 2022.
Rehfeldt is in favour of HB 1226 this year, which would mandate regulations for delta-8 and delta-10 testing, marketing, and product labelling to be developed by the South Dakota Department of Health.
Rehfeldt argued that South Dakota should not move to restrict the items five years after they became legal and available because the genie is out of the bottle. She argued that a complete ban was not only unnecessary but also foolish to do without first consulting law enforcement or conducting research on the topic.
“The goal here is that we need to be good legislators and take a bite at the apple step by step,” Rehfeldt said on the House floor on Tuesday.
Legislation introduced in that same floor debate, Bill 1226, has the backing of the South Dakota hemp sector. Canton Republican Rep. Kevin Jensen has strong opinions about the product some have called “diet weed,” and he is sceptical that the hemp industry is looking out for the best interests of his constituents in South Dakota.
Jensen wants the goods prohibited since his wife is a chemical dependence counsellor. After discovering that Bill 1226 just granted the Health Department regulation authority, he denied the opportunity to sponsor the bill.
“My aim is to get it the hell off the retail market,” Jensen told South Dakota Searchlight earlier this month.
Jensen voted for a revision to the bill introduced by Rep. Sue Peterson (R-Sioux Falls) this week that would have banned these products. He was one of the people who argued that Department of Health regulations would assist legitimate hemp products, making them harder to outlaw in the future, but the amendment ultimately failed to pass.
Last year, the FDA issued a warning on delta-8, outlining the possible dangers of its unrestricted distribution.
Rep. Fred Deutsch (R-Florida) stated, “I appreciate the industry introducing the bill but I don’t want to regulate hazardous items.” Deutsch also reminded the chamber that the Health Department is opposed to HB 1226. Forbidden is what I seek.
Attorney General Jackley has published a comment regarding any legislation involving THC but has not taken a position on the measure itself.
Attorney General Tony Mangan is “watching several marijuana bills,” as stated by the office’s spokeswoman. The Attorney General will fight tooth and nail against any effort to weaken laws prohibiting underage drinking and drugged driving. It will be a priority to ensure everyone’s safety.
Is a Ban Enforceable?
Strictly enforcing a ban on such an easily accessible chemical may prove difficult. The burden on state law enforcement would increase if these products were banned.
By 2020, medical marijuana would have been authorised by South Dakota voters. Because the law allows people to use a medical condition as a defence against a marijuana possession charge, arrests for marijuana-related crimes have dropped significantly in many parts of the state.
The difficulties of implementing recreational prohibition are compounded by the possibility that legal delta-8 goods that operate like marijuana will appear in the pockets of persons who come into touch with authorities.
Sheriff Michael Milstead of Minnehaha County, Minnesota, says it’s not easy to keep tabs on chemical variations. It’s not cheap for cops and sheriffs to examine things to see if they’re lawful, he said. According to the sheriff, there isn’t enough money to conduct the tests needed to detect and write up case reports concerning the chemical variations of even more dangerous narcotics.
In regards to narcotics like fentanyl, “keeping up with the analogues has been a constant battle,” Milstead said.
There are a variety of cannabinoids currently available, with delta-8 and delta-10 being just two of them. Hexahydrocannabinol (HHC) and THC-O are also popular. Hemp and marijuana come from the same plant species, cannabis sativa, and both of them contain anywhere from eighty to one hundred different cannabinoids.
“There are new synthetic versions coming up every week,” a spokesperson from a cannabis testing lab told STAT News recently.
Delta-8 in Schools
According to Katie Sieverding of the South Dakota Industrial Hemp Association, flavoured vape pens and other goods such as grape, chocolate cake, and fruit punch are a major reason why the business needs regulation.
She mentioned that “responsible retailers” seek legislation to address the fact that some of the advertising targets youngsters.
According to Sieverding, “Skittles” can be found in “packages that are circulating around,” and they’re being shipped in from other states. According to the author, “there is now no consumer protection available.”
South Dakota school administrators are worried about the prevalence of fruity-scented vape pens containing either nicotine or the oils present in THC products.
Sioux Falls police officer Ryan Valland works at Jefferson High School. For the past 17 years, Valland has served as a police officer at a school. Within that time frame, he has witnessed the transition from analogue to digital as the most popular method of delivering the substance of interest.
The last cigarette he took away was ten years ago.
The only difference between today’s youth and those of 17–20 years ago, according to Valland, is how the drug is used. The cigarette used to stink before. The new vape has a sweet, fruity aroma. In my opinion, there hasn’t been a genuine growth in population.
On average, one or two vape pens each week are seized from pupils at Valland, with about 90% carrying nicotine, therefore it seems that this is a serious problem in the school. The remaining 10% are THC-containing.
The use of nicotine vapes is illegal and anybody caught with them faces legal consequences. Valand files a case report to the state’s attorney if he discovers THC in a vape (he occasionally uses Google to see if there is a chance that it contains THC).
“Our policy is to prosecute them with possession of marijuana if they are found with a vape pen containing THC,” said Valland. “For the moment, we’re not picking sides.”
Even though Sieverding is worried about the unregulated vape industry, Valland shares her concerns. Similar concerns were voiced by health professionals in a Sioux Falls School District-hosted online learning event this week that had a heavy emphasis on nicotine.
So much attention is paid to what we put in our bodies, right down to reading the nutrition facts on the back of a box of cereal. But we don’t know anything about vape pens,” Valland admitted.
Summer Schultz, superintendent of the Dell Rapids School District, put vape detectors in the stalls so she could capture students using them in the stalls between classes.
According to Schultz, “if I had to target one area, it would be my middle schoolers” because of how widespread vaping has grown among pupils. Certainly not one of my junior high students.
Concerns concerning youth use of THC products, according to hemp industry attorney Kight, are “primarily a red herring, although it does occur.” Kight says he recommends age restrictions to his clients even when there aren’t any laws in place to do so.
But, for critics like Jensen, no number of rules or safeguards would be enough. In spite of the fact that a prohibition would put law enforcement in a tough spot, Jensen still prefers to see hemp-related THC products banned rather than tolerated.
The plain truth is that “right is right” and “wrong is wrong,” as Jensen put it. I won’t say, “If something’s wrong, we’re too busy to deal with it,” because that’s not true.
The House of Representatives voted in favour of HB 1226, a bill that would mandate regulations and product labelling for delta-8 and delta-10, by a score of 48 to 22. The Health and Human Services Bill is currently in the hands of the Senate Committee.
