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UNDERSTANDING CBD OIL IN SOUTH DAKOTA
To address the question in the title of this article, the answer (at least at the time of writing) is probably ‘no.’
On March 25, 2019, South Dakota Attorney General Jason Ravnsborg issued a statement in an attempt to alleviate any confusion surrounding CBD laws in South Dakota. He stated that under South Dakota’s current rules, industrial hemp - and all forms of CBD oil - are illegal.
The exception is a prescription epilepsy drug called Epidiolex, in which CBD is the active ingredient.
What Are the CBD Laws in South Dakota?
Although Ravnsborg hoped to clear up the CBD laws as they stand in South Dakota, his statement has not had the desired effect. It seems to be a common issue across America, as CBD laws more or less vary according to the state. While you often read articles which claim ‘CBD is legal in all 50 states,’ the truth is, several states have either banned the substance outright or have stringent laws in place.
Most of the confusion stems from the fact that the Farm Bill of 2018 legalized the growth of industrial hemp in the U.S. Many people assumed this meant complete legalization of CBD, as long as it was derived from hemp and contained 0.3% THC or less. While this is indeed the federal law, states still have the right to change (or ignore) the new Farm Bill as they see fit.
In South Dakota, a bill to legalize industrial hemp was defeated in March 2019. Even the vote was confusing!
HB 1191 aimed to legalize hemp and CBD oil. Although the Senate voted 20-13 in favor (with two abstentions), the bill didn’t achieve the required majority. There are plans to reintroduce the law in the state senate next year (although it may not contain any provision for the legalization of CBD).
The Impact on South Dakota Businesses
Ravnsborg’s statement on CBD came as a hammer blow to dozens of sellers and prospective customers in the state. According to Leonard Vandermante of Hemporium, the Attorney General's words generated more darkness than light. He said that customers are calling him to ask if they will get arrested for buying or possessing a hemp purse!
The official press release with Ravnsborg’s statement invited readers with questions to contact his office. When Vandermante did so, he was told to contact his local state attorney’s office. He continued his quest for more information, and spoke with Mark Vargo, Pennington County’s State Attorney.
Even the legal expert had to admit he could not clarify the legality of cannabidiol in South Dakota. While Vargo believes CBD products are illegal, he also acknowledges that he isn’t sure whether his office can prosecute these cases.
In April 2019, Ravnsborg did not make himself available for interviews despite calls for him to expand on the previous month’s statement. Instead, his spokesman, Tim Bormann, addressed the issue by sending an email to media outlets. The email said:
“Hemp, whether industrial or not, along with CBD oil in any form, is illegal.”
Can I Purchase CBD Oil in South Dakota?
At the time of writing, you run the risk of arrest if you purchase CBD in South Dakota. In April 2019, Bernard Davis became the first person arrested for possession of CBD after Ravnsborg’s statement. The incident occurred when Davis boarded a plane to Alaska. Sioux Falls police intervened and arrested him for possession of a controlled substance.
In South Dakota, a Class 5 felony is punishable by a fine of up to $10,000 and a maximum prison sentence of five years! To make matters worse, Davis is a resident of Alaska and didn’t think he would get into trouble since the substance is legal in his home state. There are numerous reports of arrests for CBD possession across the U.S. In most instances, however, the cases don't make it to court and eventually get dropped.
At PureKana, we are committed to providing our readers and customers with the most up-to-date information regarding CBD laws. It is not an easy task given the confusion over ever-changing legal statuses. There are also ‘caveats’ in several states. For example, CBD oil in Nebraska is permissible if you have intractable epilepsy, and participate in a state pilot program.
A Tricky Situation
The fact that Epidiolex, a Big Pharma creation, is legal represents a slap in the face for South Dakota CBD businesses. SB 22 allows Epidiolex in the state when prescribed by a doctor. According to Bormann, allowing the prescription version of cannabidiol doesn’t alter South Dakota’s two legal definitions of marijuana.
South Dakota Codified Law 22-42-1(7) says weed is “all parts of any plant genus cannabis, whether it is growing or not, in its natural and unaltered state.”
Meanwhile, Codified Law 34-20B-1(12) expands on the previous law by saying weed is not only every part of the cannabis genus, but is also “the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant of its seeds.”
Bormann continued by saying that hemp is of the genus cannabis, which means it meets both definitions. As a result, CBD oil derived from hemp remains illegal because it comes from the flowers of the plant.
Oddly enough, Bormann did not mention a part of the second law, which says marijuana doesn’t include cake or oil made from the plant’s seeds. Nor did he say that weed doesn’t contain fiber that comes from the mature plant’s stalks or resin extracted from any part of the plant or CBD, “a drug product” approved by the FDA.
Confused yet? You're not alone. Even a spokesperson for the state’s Attorney General doesn’t know the full details of the law as it pertains to hemp and CBD!
Although Vargo acknowledged the difficulties of prosecuting CBD cases, the story of Bernard Davis serves as a warning. There are still companies that ship CBD to South Dakota, but customers must understand the risks of buying it.
So What's Next?
We wish it were possible to provide you with a definitive answer, but a maze of legislation buries everything. The American Civil Liberties Union (ACLU) is now looking into the legal status of CBD oil in individual states; laws the organization say “are confusing at best.”
The ACLU’s policy director, Libby Skarin, said that Ravnsborg’s announcement ‘opened a can of worms.’ While the group is not involved in the Davis case, it pointed out that a felony conviction dramatically impacts a person’s life. It seems genuinely bizarre that any person is facing prison time for a substance that the federal government appears happy to legalize.
Melissa Mentele of New Approach South Dakota, a cannabis reform group, said that CBD was about “as illegal as the water coming out of your tap.” She is adamant that cannabidiol is NOT against the law in the state, and said you couldn’t prosecute someone for breaking a law that doesn’t exist. She points out that there are already too many people in the state using CBD oil. If you arrest and charge one individual, you'd need to do it for thousands.
Final Thoughts About CBD Oil in South Dakota
If you aim to purchase CBD online in South Dakota, it is essential to know that it is technically illegal in the state. Thousands of people have bought CBD in the state without package seizure, but you buy at your own risk.
In May 2019, police in Rapid City, South Dakota, seized hemp-derived CBD oil from a store because it carried trace amounts of THC. The irate retailer claimed she conducted due diligence and pointed out that the products contained 0.03% THC, way below the federal limit of 0.3%.
Unfortunately, in South Dakota, and a few other states, this doesn’t matter. While attorneys like Mark Vargo say he isn’t aware of many prosecutions relating to the purchase or sale of cannabidiol products in the state, the substance is technically against state law. The landscape will change; we are just not sure when.
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