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South Dakota Moves to Establish Industrial Hemp Program

South Dakota has submitted its plan to create a statewide industrial hemp program to the U.S. Department of Agriculture for review. If approved, the plan will provide future hemp farmers in South Dakota with concrete rules and regulations that will allow them to grow hemp without fear of running afoul of the law.

The 2018 Farm Bill notably created a formal distinction between hemp and marijuana, two variants of the same species (Cannabis sativa), based on tetrahydrocannabinol (THC) content. According to the bill, hemp is defined as containing less than 0.3 percent THC on a dry weight basis, while marijuana contains more than 0.3 percent THC on a dry weight basis.

THC is the intoxicating substance found in cannabis and can vary widely in different cultivars of cannabis. For example, most industrial hemp contains very close to 0.0 percent THC, while premium herbal marijuana sold at dispensaries tends to contain around 20 percent THC or more. Other products (shatter, wax, crumble) can contain significantly higher concentrations of THC.

Though marijuana continues to be considered a controlled substance at the federal level, hemp has been removed from that list. However, because the two are the same species, and because it is virtually impossible to tell them apart without chemical analysis, the Farm Bill stipulates that a strong regulatory environment at the state level must be established to ensure that farmers are growing hemp and not marijuana.

Cannabidiol in South Dakota

At the federal level, the Farm Bill effectively legalized products that contain cannabidiol (CBD), a non-intoxicating compound found in high concentrations hemp, but with two conditions:

1. That these products contain less than 0.3 percent THC.

2. That these products come from hemp that has been legally grown.

Most states have agreed with this reading of the law and have permitted the sale of hemp-derived CBD products, even if those products are not manufactured in the state where they are sold.

Other states, specifically South Dakota, have said that the Farm Bill does not legalize CBD products of any kind, provided there are no state regulations and agencies that can ensure these products contain less than 0.3 percent THC. Until such a framework has been implemented, CBD and CBD products are still to be considered controlled substances. As South Dakota has not implemented a plan to allow for testing, the state has argued, the products must still be considered illegal in the state.

While CBD products remain prohibited in the state of South Dakota, the previously mentioned plan should create the necessary regulations and agencies to allow farmers to legally grow industrial hemp and allow manufacturers of hemp-derived items to sell legal CBD products.

The plan will likely be approved before the end of the year.

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