CBD and other cannabis-based products are becoming increasingly popular throughout the country. More and more states are legalizing CBD oil, and even federal regulations are now looser towards consumables made of cannabis. 

However, cannabidiol is still not legal everywhere. In this article, we focus on the legality of CBD in South Dakota. Unfortunately, this state is late when it comes to implementing laws that would ensure legal medical and recreational marijuana use. Keep reading to find out all the details about current and future CBD status in this state.

A Historical Overview of the Legality of CBD in South Dakota

The story about marijuana legalization in South Dakota starts in 1977. This is when the entire country went through a decriminalization wave, and this state joined by legalizing cannabis. Unfortunately, that didn’t last for a long time; regulations that outlawed cannabis were soon implemented again. 

It took almost three decades for the next large initiative on legalizing marijuana. Supporters that started the initiative in 2006 hoped to decriminalize marijuana. Details of the suggested change included that those who complied with certain medical requirements could grow up to six cannabis plants, as well as use marijuana-based products. 

The initiative even covered minors, although they required medical consent. Consumers had the right to possess one ounce of this plant. However, the majority of voters voted against this 2006 ballot initiative.

Four years after that, another initiative started. Supporters asked for a big change in the regulations. The initiative was intended to legalize cannabis-based products like CBD in South Dakota for growing, distributing, possessing, and using. The only condition was to register with the State Department of Health

Marijuana products weren’t nearly as popular as they are today at that time, and the public wasn’t well-informed about the potential benefits of this plant. This helps explain why the initiative was defeated by a large margin on the 2010 ballot.

It is interesting to note that two following initiatives didn’t even qualify for the ballots held in 2016 and 2018. However, an important event regarding the legality of CBD in South Dakota occurred in 2017.

What Is the Current CBD Status?

If you are wondering whether you can use CBD oil in South Dakota legally, we can’t give you a definite answer. We would have to go with “probably no,” because state legislations aren’t perfectly clear regarding this issue.

Legislators added cannabidiol to the state schedule of controlled substances. The state monitors the use of these substances. Depending on the category in which the substance is placed, its use might be either completely banned or allowed with a doctor’s prescription. The stated aim of legislators is to control substances that might lead to abuse and addiction.

South Dakota legislators listed marijuana as a state-controlled substance, but in 2017 they decided to remove CBD from the definition that covered this plant. As a result, cannabidiol became a Schedule IV controlled substance. That implies that you can only use CBD products if they are approved by the U.S. Food and Drug Administration (FDA). 

Another change followed earlier this year when cannabidiol was removed from the list of controlled substances. That means the use of CBD in South Dakota should be legal now. The problem, however, lies in the fact that the legislators failed to adjust the definition of marijuana. Another issue is that the cultivation of industrial hemp is still illegal. That begs the question, how can CBD, which is a product derived from hemp and cannabis, be legal if the plants it is sourced from are outlawed?

As you can see, the issue is quite confusing. Although there are elements suggesting it is legal to use CBD oil in South Dakota, law experts claim there are also elements against it. At the moment, it seems impossible to prove who is right. Unfortunately, the state failed to decriminalize industrial hemp as the bill was defeated earlier this year. Decriminalization would have helped clarify things, but we remain in a sort of legal limbo for now. 

How to Interpret the Current Law?

According to Tom Wollman, the State Attorney of Lincoln County, and Aaron McGowan, who performs the same function in Minnehaha County, you could interpret the current law either way. Some lawyers, such as State Attorney Mark Vargo from Pennington County, believe that CBD is not illegal at the moment. That is why he decided not to prosecute any cases regarding cannabidiol.

The Attorney General of South Dakota Jason Ravnsborg disagrees. According to the press release he revealed earlier this year, CBD oil is illegal unless the FDA approves the product. 

One problem is that there is only a single drug that the FDA currently approves that contains CBD oil. It is Epidiolex, which professionals use to treat epilepsy. According to reports, the FDA has study groups trying to identify the effects of CBD in treating various medical conditions. However, any approvals are still pending, and none of them seem to be around the corner.

When it comes to Ravnsborg’s stance on the topic, the reason he is confident is that CBD originates from marijuana. As the plant is on the list of controlled substances, there is no room for interpretation. CBD oil originates from that plant, and that makes it illegal in his opinion. 

While he may be right, other legal experts claim there is no way to prove it. Vargo notes that the executive branch of the government shouldn’t leave any room for assumptions. However, when it comes to possessing CBD legally, the law can be interpreted in various ways.

Examples of Current Cases in South Dakota

Attorney Clint Sargent revealed that his client, Bernard Davis from Alaska, was arrested at the Sioux Falls Regional Airport. Mr. Davis possessed CBD oil and was subsequently charged with a Class 5 felony. 

The obvious problem with considering CBD possession a felony is that it is a serious offense. It could not only involve prison time but also means the person convicted would have a permanent record that might affect their employment and life in general.

Although this is a single example, it is not the only arrest that occurred throughout South Dakota. A law open to interpretation is a significant issue since, among other reasons, some people might be breaking the law without even realizing it. We know that not being familiar with the law is not an excuse, but what happens when even experts can’t be precise in determining what the regulations are?

What About the Future?

Unfortunately, nobody can accurately predict the plans of lawmakers in South Dakota. While there are initiatives to legalize CBD, similar initiatives were defeated on multiple occasions in the past. Not a single politician dares to speak publicly about the plans for CBD and cannabis-based products. That brings another layer of confusion to the entire issue.

There are at least two ways things can go. The first one is to classify CBD like an OTC drug, which would legalize possession, use, and distribution of CBD oil. The other is to reestablish cannabidiol as a controlled substance and require FDA approval for the products to be legal, or outlaw them completely. 

It is hard to imagine that legislators won’t resolve this issue in the upcoming year or so. A bigger problem is related to marijuana and cannabis-based products. The plant is currently on the list of state-controlled substances, and it doesn’t seem that it will change in the future. That leaves South Dakota as one of the few states that outlaws marijuana completely. 

Can the Change of Federal Regulations Affect Legality of CBD in South Dakota?

The United States legal system can be complex because regulations on state and federal levels can be different. However, states often follow federal trends on various issues. 

In December 2018, President Donald Trump signed the new Farm Bill. Its details significantly changed the use of hemp, which is a plant that gives us CBD. Although the Bill hasn’t legalized hemp completely, the plant only has one requirement to fulfill to become legal: the THC content cannot exceed 0.3%.

This legislation is generally seen as a positive move for the entire cannabis industry. Not only did federal regulations legalize the use of CBD and other cannabis-based products, but the requirement aims to regulate the market and product quality.

If you want to grow cannabis and manufacture CBD products, these are some of the terms you must fulfill:

  • Register with the Department of Agriculture and acquire a license. 

  • Share the location of where you plan to grow the plant and provide papers that confirm the property is yours.

  • Test the content of THC in your products. An independent facility should test whether THC content exceeds 0.3%, and they should issue a certification that confirms the content is within the required levels.

  • Design the label to include all the necessary information required by the authorities.

It is interesting to note that most states allow the use of marijuana, although some restrict it to medical purposes. Only a few states kept their laws unaltered, and cannabis-based products illegal. 

Although the Farm Bill is a step in the right direction, South Dakota legislators still failed to legalize CBD. They even failed to be clear when it comes to regulations currently applied in the state. 

If one thing is certain, it is that things are unlikely to remain like this for long. Nobody benefits from the current situation; potential users fear trying and using CBD oil, and the reputation of lawmakers could also be affected.