A South Dakota Senate panel advanced—but did not endorse—bans on hemp-derived intoxicants and kratom on Wednesday at the Capitol in Pierre.

Both bills were sponsored by Sen. John Carley, R-Piedmont.

The Senate Health and Human Services Committee voted unanimously to put the two prohibition bills in front of the full state Senate with no recommendation. Committees generally give a “do pass” recommendation to the bills they send out for a floor vote.

The votes came one day after the Senate Judiciary Committee offered its unqualified support for a bill meant to restrict the sale of certain hemp-based products to people older than 21. That bill came from Attorney General Marty Jackley (R).

In testimony about Carley’s bills, business owners and consumers of products like hemp-derived THC seltzers and kratom said they helped people kick opioids or alcohol. They also mentioned sales taxes collected on consumable products and the value of hemp to South Dakota farmers. That led some committee members to oppose the bills and sparked failed attempts to block the proposals. Ultimately, however, the committee opted to let the state Senate weigh in.

“We need to have a conversation about this on the floor,” said Sen. Curt Voight, R-Rapid City. “I think it rises to the level of a legislative decision.”

Possession, sale or use of kratom or THC consumables under each proposal would be a class 2 misdemeanor, punishable by up to 30 days in jail and a $500 fine.

Tighter rules on hemp products

The first bill, Senate Bill 61, aims to act as an outright ban on the possession, sale or use of any intoxicating hemp products in the state outside of licensed medical marijuana dispensaries.

Such products are typically produced by altering or distilling cannabidiol, or CBD, found in the hemp plant to produce forms of tetrahydrocannabinol, or THC, which is the intoxicating compound found in greater abundance in the marijuana plant.

Many of the gummies, vape cartridges and other products made using hemp-derived THC variants like Delta-8, Delta-9 or Delta-10 are sold primarily in smoke shops, but THC seltzers are often available at bars, liquor stores or grocery stores.

The products essentially act as a workaround for the prohibition of marijuana in South Dakota by anyone who lacks a medical marijuana card, Carley said. The senator is also a member of the state’s Medical Marijuana Oversight Committee, which has taken testimony from medical cannabis providers about the impact the unregulated market has on their operations.

“This actually is harming the licensed marijuana businesses,” Carley said.

Carley had the support of the South Dakota Police Chiefs’ Association, South Dakota Sheriff’s Association and a group called Protecting South Dakota Kids.

Opponents included representatives for hemp retailers and hemp growers and a handful of business owners, who said the bill’s ban on any products with more than 0.4 percent THC by weight would remove many non-intoxicating products from store shelves, including topical creams.

“All this is a hemp and CBD ban,” said Matt Yde, who sells CBD in Sioux Falls but does not offer intoxicating products. “I would have to close my store, because I would have to remove 90 percent of my products.”

Steve Siegel of the South Dakota Trial Lawyers Association said he’s had many friends who’ve switched to THC seltzers from alcohol or pain killers. He said their popularity shows consumer demand, and getting a medical marijuana card can be expensive and onerous.

“These drinks should be regulated. But they’re selling like wildfire,” Siegel said. “They’re a phenomenal alternative to alcohol.”

Carley responded by saying the state shouldn’t be encouraging people to switch from one mind-altering drug to another.

He was “sorry to hear” about people who’d been addicted to painkillers and alcohol, but said instead of switching to a THC alternative, “They need some friends there. They need some church. They need some God in their life, or even ice cream or tea.”

Enforcement question

State law already bans the sale and production, but not the use, of adulterated THC derived from hemp plants. Lawmakers passed that bill in 2024.

It’s unclear how Carley’s bill criminalizing possession and use would impact enforcement.

An official opinion on the matter came at the request of the city of Brookings, which operates a municipal liquor store and inquired about the possibility of selling Delta-9 THC drinks at the store.

Attorney General Marty Jackley wrote an official opinion in November that said THC drinks containing hemp-derived Delta-9 THC may be illegal if the intoxicating compounds were created by distilling CBD oil.

Without testing, the opinion says, the question of the legality of any particular hemp-derived drink “cannot be answered.”

Carley pointed to that letter in his testimony and said his bill would “help clean this up, so that both the public and the attorney general can have a better way of controlling this.”

Jackley’s office did not testify for or against Carley’s bill.

Later Wednesday, in an emailed statement, Jackley’s office told South Dakota Searchlight that “we appreciate Sen. Carley bringing this issue to the forefront,” and that Jackley will “continue to work with all legislators on legislation that addresses age-appropriate restrictions and guardrails around these products.”

The issue of testing remains, however.

“Generally speaking questions about whether a specific product is ‘intoxicating’ or otherwise prohibited often still come down to what the product actually contains, which is typically established through reputable laboratory testing,” the statement says.

In an interview after the hearing, Carley said he understands that the products are likely being sold illegally already. Adjusting the current law’s verbiage to specify that hemp-derived THC is meant for medical marijuana users will clarify its intent for law enforcement and the business community, he said.

“This just simplifies it for everyone,” Carley said. “If you want to sell this, it needs to be in a dispensary.”

Kratom ban

As with hemp-derived THC, lawmakers in South Dakota have whittled around the regulatory edges of kratom for several years.

Lawmakers passed a bill to ban the sale of kratom to people younger than 21 in 2021. They voted to set potency limits and require safety and dosing labels, and to ban adulterated derivatives of the drug, in 2025.

Kratom products, most forms of which are legal in South Dakota, are made from the leaves of the kratom tree, which is native to Southeast Asia. Sold as powders, pills or in shot-sized drinks sometimes mixed with other ingredients, kratom products can have stimulant or intoxicating effects, depending on the dosage and plant variety used. Kratom can be found in smoke shops, but is also sold in convenience stores across South Dakota.

It can be used to alleviate pain, anxiety or to treat opiate addiction, Carley said, but it can also be abused, lead to addiction and kill people if used improperly.

The Department of Health has tallied at least six deaths from kratom use, Carley said. Health department spokeswoman Tia Kafka told South Dakota Searchlight after the hearing that those deaths came in 2024. Lawmakers passed their latest round of kratom restrictions the following year.

Pointing to a fact sheet from the U.S. Drug Enforcement Administration and a list of states that have banned kratom outright—including, this month, the state of California, whose health department declared its sale illegal—Carley said it’s time for South Dakota to pull the product from shelves. His bill to do that is Senate Bill 77.

“This is an emerging drug issue in the United States,” Carley said.

Michigan resident Susan Eppard testified that she’d lost a son to kratom leaf powder, not to the adulterated versions of kratom lawmakers in South Dakota have already banned.

“Kratom caused him to have a seizure, go into cardiac arrest, and die a violent death on his kitchen floor in front of his girlfriend,” Eppard said.

Matthew Lowe, executive director of the Global Kratom Coalition, said most of the issues associated with kratom use have been tied to the adulterated product. He also said that 18 clinical trials have shown natural leaf kratom to be safe, and that South Dakota’s move to regulate the products’ labeling may well be enough to mitigate any harms that might come from abuse.

“I think we need to focus on what has been passed and create a safe marketplace before we walk down the path of prohibiting natural kratom leaf entirely,” Lowe said.

Debate focuses on business impact, uncertainty

Sen. Jamie Smith, D-Sioux Falls, supported moves to block both bills in the committee, in part based on concerns about impacts to businesses. Worries about the loss of access to CBD products was a particular concern, he said, given the Carley bill’s THC per container dosage limits.

“We’re doing something per container, and we don’t define the size of the container,” Smith said. “That’s bad legislation.”

Sen. Tim Reed, R-Brookings, meanwhile, said it may be too soon to move on kratom, given testimony about how people can use it to replace opioids or treat pain.

“I’d hate to take a product away from people who are using it responsibly,” Reed said.

Sen. Kevin Jensen, R-Canton, represented the majority on both bills, opposing moves to stop the bill in committee. Kratom specifically has become a problem drug for young people in South Dakota, he said, because “it’s so easy to get” in spite of the age limits.

The impact on business and sales tax collections from users of kratom or THC products, he argued, shouldn’t carry weight in debates on drug abuse.

“When we’re looking at public safety, I don’t want to hear about sales tax revenue,” Jensen said.