No charges will result from May’s police seizure of hemp-derived CBD oil containing THC at a Rapid City health-food store.
"In order to prosecute somebody for the distribution of THC, which is a schedule 1 (drug), we would have to prove that they did so knowingly. And when they're relying on manufacturer representations, which turn out to be wrong, it would be kind of hard to prove that they did so knowingly," Pennington County State's Attorney Mark Vargo said Monday.
"They were under the impression that there was" no THC in their products, Vargo said of the staff at the Staple and Spice Market.
"I didn't do anything wrong," Carol Pugh, owner of the store on St. Joseph Street and Mount Rushmore Road, said when asked Monday how she felt about the decision.
Rapid City police officers and Pennington County deputies seized 16 individual or bundled packages of Plus CBD Oil products worth about $3,000 on May 23, according to Pugh and a search warrant inventory.
Plus CBD Oil, a San Diego-based company, has products with less than .3% THC, according to the company's page on hemp. Anyone who takes a drug test should not use their products since they're "not completely THC free," the company says on its FAQ page.
Pugh said a Rapid City police officer told her that one of the agency's detectives previously purchased items from the store, tested them and found they were positive for THC.
"We acted on a tip, confirmed the products contained THC, and seized them," Assistant Police Chief Don Hedrick wrote in an email on Monday.
In addition to making a decision about the Staple and Spice case, Vargo recently sent a letter to stores that sell or are interested in selling CBD products. Law enforcement tested nine CBD products and found that three have measurable amounts of THC in them, the letter says.
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"Significantly, some of the tests show that the products, which claim to have no THC, not only have THC acid but also have the psychoactive form of THC," Vargo wrote, adding that THC is "undeniably" illegal in South Dakota "in any quantity or concentration."
"Given the lack of quality control of products that are not FDA approved, I would again urge caution in your sourcing of products claiming to be CBD. Third party testing of any new brands would be distinctly advisable," Vargo told the businesses.
Vargo said his office or local law enforcement will connect stores with certified laboratories that can test samples of their products to see if they have any THC.
He said the letter serves as a notice that any of the products he listed that do contain THC are illegal. "Further distribution of them will result in seizure of the products and may also be the basis for criminal prosecution."
Pennington County Sheriff Kevin called Vargo's decision not to prosecute and send the informational letter "a fair resolution to the solution" since some store owners may have products with THC without knowing it. He said his deputies will investigate CBD oil products if they receive specific tips about them containing THC.
While staff with the Rapid City Police Department tells the public that CBD oil is illegal to possess or distribute based on the attorney general's view, officers won't take any enforcement action due to Vargo's stance, Hedrick said.
Hedrick agreed with Vargo that any item with THC is illegal and that businesess should ensure their products do not contain the substance.