As of today, several varieties of intoxicating hemp products are illegal to sell or produce in the state of South Dakota.

That doesn’t necessarily put them out of reach for South Dakotans. 

It also doesn’t mean death for the market in alternative intoxicants that’s emerged across South Dakota and the nation in part thanks to a loophole in the 2018 federal farm bill, which legalized hemp.

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Even if all the products now banned through the actions of the South Dakota Legislature last winter are pulled from store shelves in the state – an open question as the law takes effect – buyers can purchase them online with little fear of repercussion, as their possession isn’t prohibited through the new law. 

The law targets synthetically produced delta-8, delta-9, delta-10, THC-O, THC-P and HHC. Each are chemical cousins of delta-9 tetrahydrocannabinol, or THC, the high-inducing compound in cannabis flowers. 

Sellers or producers of the hemp-derived products could be charged with a class 2 misdemeanor – the lowest-level crime in the state, punishable by up to 30 days in jail.

But the testing necessary to prove any product violates the law has limits and requires wait times for local law enforcement. The state’s largest policing agencies have no immediate plans to prioritize enforcement.

That puts the onus on retailers to follow a law that would cut into revenues or force them out of business.

A federal lawsuit from Pierre-based Hemp Quarters 605 is also in play. The company attempted to block the new law as an unconstitutional overreach that interferes with the interstate commerce permitted under the federal farm bill. But U.S. District Judge Eric Schulte declined to issue a preliminary injunction. 

Even without the injunction, though, the company’s lawsuit will proceed and could eventually upend the law.

Caleb Rose of Rapid City owns Black Hills Vapors and recently founded a trade group called South Dakota Retailers for Better Alternatives to advocate for stores that sell hemp-derived products. 

Rose said he planned to pull the targeted products from the shelves of his West River stores, but the lack of certainty could mean other retailers opt to ignore the new law.

“I think everybody in town and everybody in the state is going to have to make their own calls and consult their lawyers on what they want to do,” Rose said.

Testing complications

Questions of enforcement are tied to product testing. A can of gummies on a retailer’s shelf might say “delta-8,” but prosecutors would have to prove the product is illegal beyond a reasonable doubt. 

Doing that requires testing, which for the newly illegal substances involves a waiting period for local officers and prosecutors. There are field tests for some felony-level narcotics like methamphetamine, and some agencies can test for the presence of the active ingredient in traditional cannabis, but there are no such tests for products like hemp-derived gummies or delta-8 vape pens. For those, police would rely on the state Department of Health lab.

That lab can distinguish between delta-8, delta-9 and delta-10 THC, according to spokesperson Tia Kafka.

But there is no test that can show with certainty that the chemicals present in any particular product are naturally or synthetically derived. To run afoul of the new law, the offending chemical must have been altered from its original state. In theory, products with high levels of the chemicals would be legal if they were naturally derived.

Kafka said that shouldn’t prevent police from making a call on enforcement. Delta-8 is only found in small amounts naturally, so Kafka said high levels of those compounds would be enough to show that they’ve been modified and are therefore illegal to sell.

Even if a product claims to contain unaltered, unadulterated delta-8, Kafka wrote that testing can help triangulate an intoxicant’s origin.

Products with synthetically produced hemp chemicals “often have contaminants from the chemical reaction which can be an indicator that a product is not 100% natural,” Kafka said.

The legalization of hemp and medical marijuana has already slowed the pace of cannabis testing at the state lab, though. In 2020, the state conducted 807 tests for cannabis. Last year, the lab did 99.

“Following legalization of industrial hemp and medical cannabis, state laws changed significantly leading to reduced cannabis testing,” she said. 

Law enforcement awaits guidance

It’s unclear if the new law will spur more law enforcement interest in lab testing, but agencies have given no indication that enforcement will become a priority. 

Decisions on enforcement come at the local level, Attorney General Marty Jackley said. 

There are no plans to push for investigations of shops or hemp products from the state level just because they’re sold in hundreds of stores, he said.

No business can be searched or spot-checked for compliance with the law without probable cause and a warrant, he said.

“What I can tell you is the Legislature took certain action. They made certain conduct illegal,” Jackley said. “Law enforcement’s job is to enforce that. We don’t do anything special with respect to that.”

In the Hemp Quarters 605 lawsuit, court records show that the Hughes County State’s Attorney’s Office does not intend to immediately prosecute the company’s owners for violations of the new law.

Sioux Falls Police Department spokesperson Sam Clemens said his agency awaits guidance from the Minnehaha County State Attorney’s Office on what kinds of enforcement actions it might need to take to enforce the new misdemeanor. 

Minnehaha County State’s Attorney Daniel Haggar has not offered guidance on enforcement, though. He told South Dakota Searchlight that his office will evaluate any cases brought by police to determine if prosecutions are necessary.

Katy Urban, spokesperson for the Pennington County State’s Attorney’s Office, offered a similar response by email. She wrote that prosecutors in Rapid City will consider the merits of any case presented to them by police agencies.

Rapid City Police Department spokesperson Brendyn Medina, meanwhile, said his agency awaits enforcement guidance from the Pennington County State’s Attorney’s Office.

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Even if law enforcement were to doggedly investigate the sale of newly illegal products, plenty of other avenues for a legal high remain, both for sellers and users.

Other non-hemp products include kratom, kava and magic mushroom hallucinogens, the latter of which are produced with different mushrooms from the federally illegal fungus psilocybin. Some classes of non-alcoholic, hemp-derived beverages, available in bars, restaurants and grocery stores around the state, will also remain available. 

Joshua Williston manages a Chasing Clouds vape and smoke shop in Sioux Falls, and said late last week he’d remove the now-banned products from the shelf by July 1. Chasing Clouds is a chain store, and he said anything unsold and illegal today will be shipped off for sale in states without a ban.

Williston expects customers who relied on those products will either get medical marijuana cards, buy recreational marijuana on the black market or find other ways to get high.

“It’s probably going to slow business down, but it ain’t gonna stop,” Williston said. “It’ll pick back up in other areas, because once it’s no longer an option, people will just find other things to substitute it with.”

Sponsor: Federal fix needed

Rep. Brian Mulder, R-Sioux Falls, was the new law’s prime sponsor. He told South Dakota Searchlight he understands his bill’s practical limitations, but that he’s hopeful most retailers will reduce the supply of near-pot intoxicants by complying with the law.

He’s also hopeful because of ongoing discussions in Washington, D.C., about the next federal farm bill. Congress has debated the next version of that bill for more than a year, and a provision added by the U.S. House Agriculture Committee in May aims to close the loophole that created the market by drawing a legal distinction between hemp grown for chemical extraction and hemp grown to produce things like food or fiber.

Congress has already extended its deadline for passage of the farm bill once. The deadline for passage is now September.

“However quickly that could go into law, it might be moot here in South Dakota for us to try to address anything else,” Mulder said. 

Requests for comment sent to all three members of South Dakota’s congressional delegation on the farm bill and hemp went unanswered.

Mulder, who works with an organization called Volunteers of America that offers chemical dependency services, said lawmakers in South Dakota want to do what he thinks the federal government meant to do with the 2018 farm bill. 

The feds didn’t mean to legalize weed with a loophole, he said. 

“We were trying to deliver something that was the true intent of the 2018 farm bill, where hemp products were being sold for fiber, fabrics, building materials and some of the therapeutics made with CBD,” he said.