PIERRE, (John Hult/South Dakota Searchlight) — There are at least three shops that sell products made from the legal, hemp-derived cousins of marijuana within a half mile of the state Capitol.
On Tuesday, lawmakers took the first steps toward a ban on what’s sold there – and in every corner of the state.
House Bill 1125 would ban most high-inducing “diet weed” products. They’re manufactured through the chemical manipulation of naturally occurring compounds that appear in miniscule amounts in hemp plants.
That would include anything containing the following compounds: delta-8 THC, delta-10 THC, THC-O, HHC and THCP. Those products include gummies, vape pen juice and modified, smokable hemp flower.
The bill does not seek to criminalize the possession of those substances, merely their sale or production. Sale or production would be a class 1 misdemeanor, punishable by up to a year in jail, a $2,000 fine, or both.
Concerns of misuse are directly tied to the “production” piece, according to the bill’s sponsor, Rep. Brian Mulder, R-Sioux Falls.
The 2018 federal farm bill legalized hemp containing less than 0.3% tetrahydrocannabinol (THC). Since then, companies have moved to extract, synthesize and chemically alter the kinds of THC present in hemp (but not traditional cannabis) for use in consumer products. Some of the compounds can be more potent than the delta-9 THC present in regular pot.
“Some of the manufacturers may use potentially unsafe household chemicals to make delta-8 THC-O,” Mulder said.
Mulder’s bill would bar the sale of products for which the state health lab can prove chemical manipulation by identifying the additional molecule used to create them. Products made with naturally occurring chemicals would remain legal.
“We’re trying to thread the needle,” he said, to make sure businesses will still be able to sell the products their customers find useful.
State officials, law officers support ban
Lobbyists for three law enforcement organizations testified in favor of the bill.
“We’re trying to catch up to ourselves since this all happened in 2018,” said Dick Tieszen, who spoke on behalf of the South Dakota Sheriffs’ Association. “Law enforcement is very concerned about it.”
Testing to sort natural from synthetic chemicals wouldn’t present any difficulty for the state health lab, said Department of Health Secretary Melissa Magstadt.
“It touches exactly those specific products,” Magstadt said of the bill.
The department supports the bill, she said, because of the dangers the products present, particularly to children. She noted that the National Poison Control Center has logged overdose deaths related to delta-8-style products, and argued that they only exist for recreational purposes. The Drug Enforcement Administration (DEA) classifies all categories of THC as substances with no accepted medical use, she said.
“These have zero medical use, and are 100% used for psychoactive effects,” Magstadt said.
Opponent: Net too wide
Caleb Rose argued otherwise.
Rose owns CBD and delta-8 shops in the Black Hills, and said many of his customers use delta products for pain relief and other medical symptoms.
Mulder spoke frequently with Rose, the shop owner said, and he thanked the lawmaker for the engagement. Even so, Rose said the bill as written is more restrictive than it needs to be.
He pointed to a February letter from the DEA suggesting that some delta products qualify as controlled substances. Mulder cited that letter, as well. But the DEA guidance only touched on two forms of manipulated THC. Mulder’s bill bars the sale of more varieties than that, Rose said.
“We are on board if we can come in line with the federal government,” Rose said. “If we can really thread this needle and identify the compounds that the federal government is actually speaking about, and avoid the naturally produced compounds that are helping people, we will be eternally grateful.”
Mulder argued that his bill preserves access to naturally derived products, and that businesses that know the provenance of their products and follow the law needn’t be concerned.
“We are trying to work together to find that scenario where we are not harming our good players in this industry,” Mulder said.
It’s not the first time lawmakers have worked to ban delta-8-style products. Rep. Taylor Rehfeldt, R-Sioux Falls, argued against last year’s attempt to do so, and said she worries that the details of a ban and uncertainty about the impact on human health from product to product make it a difficult decision.
“We need to make sure that what people are consuming is what they think it is,” Rehfeldt said, without unfairly impacting businesses that are “trying to keep their doors open and play by the rules.”
In the end, Rehfeldt voted to pass this year’s bill along to the full House of Representatives. She was joined by 10 other committee members on the 11-2 vote. Sioux Falls Democrats Erin Healy and Kameron Nelson voted against it.