South Dakota in the US passes legislation making delta-8 THC legal for adult use

South Dakota’s Republican governor, Kristi Noem, has signed House Bill (HB) 1292, legalising the sale of delta-8 THC, THC-O acetate, and hexahydrocannabinol (HHC) in the state after the bill flew through the state legislature almost unanimously.

The bill, which makes it illegal to sell or distribute products containing delta-8 THC, THC-O acetate, or HHC to anyone under 21 – in turn establishing a legal status for such products for over-21s – passed committees in the state’s House and Senate before then unanimously being approved by the Senate. Its only opposition came when just two members of the House voted against its passage.

Carl Perry, the Republican representative from the city of Aberdeen and a sponsor of HB 1292, told CBD-Intel that he had expected  Noem to sign it, as “this is a step to protect youth”. He said the bill was a “compromise and a collaboration” and that it would be possible to add other intoxicating cannabinoids, isomers, salts, and the like in the future.


South Dakota: still finding its way


The bill is a demonstration of how the state deals with regulation of potentially intoxicating substances, with different approaches taken to products that are often grouped together in other states. For example, multiple states banning recreational cannabis have also worked to completely ban hemp-derived intoxicating compounds such as delta-8 THC, while others with recreational cannabis regimes have worked to include such substances within the licensed dispensary retail system.

Another example is with the 2021 passage of HB 1262, which was virtually identical to this year’s HB 1292 in language except that it was specific to the kratom plant rather than the cannabinoids at issue this session. Last year, HB 1262 passed in essentially the same manner as HB 1292 did this year, giving further credence to expectations of South Dakota expanding similar legislation in the future.

Perry said: “We have made Kratom, Vaping, and Tobacco all require the age of twenty-one, and this fits our line of reasoning. These legislative actions are new to South Dakota. We are working to create adequate policy to protect and provide service to constituents.”

However, over the same period, under the direction of Noem, a lawsuit challenged the 2020 ballot initiative on recreational cannabis under the premise that it violated South Dakota’s single-subject ballot initiative law. The circuit court struck down the initiative, and South Dakota’s Supreme Court upheld that ruling.

The state implemented a separate medical cannabis programme over the objection of Noem, though the governor now touts the programme as a success for South Dakota.


Could recreational cannabis be legalised in the state?


Meanwhile, Senate Bill 3, an act that would provide for the use and regulated sale of recreational cannabis, has been knocking around the legislative chamber without a full vote.

The bill initially passed the Senate before being voted down in a House committee. Using a joint rule to undertake the legislative process and smoke out the bill from the committee saw some initial success, but the bill ultimately failed to garner the majority it needed to be added back to the legislative calendar, effectively stubbing it out it for this session. The law’s proponents in the state legislature continue to push for its passage.

Advocates hold out hope for movement on the overall legalisation of recreational-use cannabis. If South Dakota legislators cannot come to terms with it, a more carefully worded appearance in the form of another ballot initiative primed to survive any challenge under the state’s single-issue requirements is expected.

Though this recreational-use legislation has yet to make its way to the governor’s desk, Noem is on record opposing the move. She has, however, indicated she would support decriminalisation.

Governor Noem’s communications director told CBD-Intel that the governor “carefully reviews any bill that reaches her desk”, but declined to comment further.

– James DeLise CBD-Intel contributing writer

Photo: Bart

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