Law banning sale of some cannabis-related products goes into effect, but won't stop all legal highs • Nebraska Examiner

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.

Nor does it mean the death of the alternative intoxicant market that emerged in South Dakota and across the country, thanks in part to a loophole in the 2018 federal farm bill that legalized hemp.

Even if all of the products now banned by the South Dakota legislature's action last winter are removed from state store shelves — an open question as the law goes into effect — shoppers can buy them online without fear of repercussions because their possession is not prohibited by the new law.

The law targets synthetically produced delta-8, delta-9, delta-10, THC-O, THC-P and HHC. Both compounds are chemical cousins ​​of delta-9 tetrahydrocannabinol, or THC, the euphoric compound found in cannabis flowers.

Sellers or producers of hemp-derived products could be charged with a Class 2 misdemeanor — the state's lowest-level felony, punishable by up to 30 days in jail.

But the tests needed to prove a product violates the law have limits and require waiting periods for local law enforcement to comply. The state's largest police agencies have no immediate plans to prioritize enforcement.

This places the onus on retailers to comply with a law that would reduce their revenues or force them out of business.

A federal lawsuit filed by Hemp Quarters 605, a Pierre-based company, is also pending. The company has tried to block the new law by calling it unconstitutional and interfering with interstate commerce permitted under the federal farm bill. But U.S. District Judge Eric Schulte declined to issue a preliminary injunction.

However, even without the injunction, the company's lawsuit will continue and could eventually overturn 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 plans to remove the targeted products from the shelves of his West River stores, but the lack of certainty could mean other retailers choose to ignore the new law.

“I think everybody in town and everybody in the state is going to have to make their own decisions and consult with their attorneys about what they want to do,” Rose said.

Complications related to testing

Law enforcement issues are tied to product testing. A box of candy on a retailer's shelf might say “delta-8,” but prosecutors will have to prove the product is illegal beyond a reasonable doubt.

That requires testing, which means a waiting period for local law enforcement and prosecutors for newly illegal substances. There are field tests for some felony-level narcotics like methamphetamine, and some agencies can test for the active ingredient in traditional marijuana, but there are no such tests for products like hemp gummies or delta-8 vape pens. For those products, law enforcement would rely on the state Department of Health’s lab.

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

But there is no test that can prove for sure whether the chemicals in a particular product are naturally occurring or synthetic. To violate the new law, the chemical in question must have been altered from its original state. In theory, products containing high levels of chemicals would be legal if they were naturally occurring.

According to Kafka, this should not stop police from taking enforcement action. Delta-8 is only found in small amounts in nature, so Kafka said high levels of these compounds would be enough to show that they have been modified and are therefore illegal to sell.

Even if a product claims to contain unadulterated, unadulterated delta-8, Kafka writes that testing can help triangulate the origin of an intoxicant.

Products containing synthetically produced hemp chemicals “often contain contaminants from the chemical reaction, which can indicate 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. In 2020, the state conducted 807 cannabis tests. Last year, the lab conducted 99.

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

Law enforcement awaits instructions

It's unclear whether the new law will increase law enforcement interest in lab testing, but agencies have given no indication that enforcement will become a priority.

Law enforcement decisions are made at the local level, Attorney General Marty Jackley said.

There are no plans to push the state to investigate hemp stores or products just because they are sold in hundreds of stores, he said.