South Dakota: Medical marijuana now on track to become state law on July 1

Initiated Measure 26 that legalizes medicinal marijuana in the state will become law on July 1 after legislators failed to come up with a compromise for House Bill 1100.

However, concerns still remain about the number of cannabis plants patients can grow, and Gov. Kristi Noem has not yet ruled out the possibility of a special session to address the voter-approved ballot measure.

IM 26 legalizes the medical use of marijuana for qualifying patients, which can include minors who have parental approval. IM 26 also legalizes the sale, delivery, manufacturing, testing, and cultivation of marijuana for medical use. A patient with a debilitating medical condition, such as seizures, cancer, or chronic pain, must be certified by a “bona fide medical practitioner” that they already have an established relationship with in order to get a recommendation.

Once certified, a patient must apply for a registration card from the Department of Health, which will allow them to purchase and possess up to three ounces of marijuana and additional marijuana products. If a cardholder is allowed to grow plants, they must have a minimum of three.

While IM 26 goes into effect July 1 of this year, the DOH has 140 days after that point to issue registry identification cards to qualifying patients. The DOH has 120 days after July 1 to establish a secure web- or phone-based verification system to allow law enforcement and medical cannabis establishments to check the validity of registration cards, and 120 days after July 1 to promulgate rules pertaining to legalization.

Last Thursday, Noem said she had several concerns around IM 26 and was disappointed legislators could not come to an agreement on HB 1100, which would have modified provisions for medical legalization and pushed back implementation of the medical program.

Noem’s main concerns are the lack of limits on homegrown marijuana plants and children’s access to marijuana produced by those plants.

“I hope everybody understands that under that initiated measure that people can grow as many plants as they want to at home, they just need a prescription from a doctor and they could grow 500-1,000 plants if they wanted to. Kids of all ages will have access to marijuana and will have the ability to utilize those homegrown products as well, so that’s my concern,” Noem said at a recent press conference.

Melissa Mentele, executive director of New Approach South Dakota and an author of IM 26, said that although IM 26 does not specify a number of plants, advocates for medical marijuana anticipate patients only growing three to five plants. An experienced cultivator could yield three ounces of marijuana from a cannabis plant, but Mentele said realistically, a new grower will have more failures than successes at first.

“We see patients as responsible consumers. Nobody is going to grow 500-1,000 plants, we all have to live in our homes and have furniture,” she told the Journal. “And there’s a learning curve with growing; you can’t just pop a plant into a pot and expect magical results, you have to tend to them.”

Senate Majority Leader Gary Cammack, R-Union Center, has said he had “serious concerns” about the IM 26 implementation and that there is not enough control over the product to protect children.

Mentele said IM 26 proponents also do not want children smoking marijuana, and that it was “common sense” that children’s medicinal cannabis would not be smokeable. It is unfortunate that opponents assume otherwise, she said, but if further conversation is required to assuage people’s fears, she is willing to have that conversation.

Mentele pointed out that while concern for children’s access to marijuana is high, children already have access to other, more common substances such as alcohol.

Noem said she has not yet decided to call a special legislative session to work out issues with the measure as written. She said her office would be spending a lot of time with the Departments of Public Safety, Health, and Revenue to work on implementing IM 26 safely.

“That’s the challenge that I have in front of me now is how do we take IM 26 and do it in a responsible manner and be fair? And that’s why I wanted stakeholders to have time to weigh in,” Noem said. “I certainly understand the desire of the public wanting to have a medical marijuana program, just, I want to do it responsibly.”

Mentele said the state’s role in promulgating rules and regulations is, in reality, minimal, as the 95-section measure only requires them to set 10 rules — the rest are already included in IM 26.

Senate Minority Leader Reynold Nesiba, D-Sioux Falls, said there was plenty of time to prepare for IM 26, as polling suggested it would pass in the November election.

“We simply lack the leadership to be doing that to get a structure in place by July 1. I’m disappointed that the executive branch didn’t take greater leadership in getting us ready for July 1,” Nesiba said during a press conference Thursday.

Mentele said all the executive branch has to do is reach out to her and other advocates, who are more than willing to donate staff hours to help start the program. If someone reached out and said they needed help, “we could have [a program] standing in a month.”

“They have spent a lot of hours lobbying against us. If they could take back those hours, they could have been putting in time to implement IM 26,” Mentele said. “I think they’re going to be just fine. There are multiple [cannabis] experts that live in state and are here to help, it’s just a matter of them taking the hand we’ve extended multiple times.”

Instead, Mentele said the executive branch has “shut the door.”

Mentele said the bill covers every issue any state that has legalized medical marijuana has had to deal with — there are provisions to protect property owners, employers, roads/airways/waterways and public spaces, to encourage safe and private home cultivation, and to prescribe it based on a pre-established patient-provider relationship.

“[IM] 26 is a good bill. It was written for patients. If [the government] wants to protect [itself], it’s their job to put policy in place,” Mentele said.

“The biggest thing is that we are doing something groundbreaking. We are treating a patient’s symptoms instead of lumping them into a disease and checking a box. We’re taking a different approach. We’re here to treat symptoms that make disease hard on a human being,” she said.