In a decision that contradicts the opinion of the state's attorney general, the top prosecutor in Pennington County said Tuesday he has no plans at this time to prosecute hemp-derived CBD oil cases.
"CBDs themselves are not scheduled and not marijuana under our statutes," Mark Vargo, Pennington County state's attorney, told the Journal.
Vargo said products such as purses or shirts made of hemp are also legal, but he doesn't know anyone who's questioned that.
Both Pennington County Sheriff Kevin Thom and Rapid City Police Chief Karl Jegeris said they will follow the direction of Vargo.
"We will not be arresting people for CBD oil," Thom said. "I defer to the local state's attorney regarding his opinion on CBD oil. Ultimately, either the courts and/or the Legislature may have to provide further clarification on the issue."
"At this time, we will not take enforcement action," Jegeris said. "However, our staff has been directed to continue to advise the public CBD oil is illegal to distribute and/or possess per the Attorney General's Office.
Jegeris said he notified his staff of the "complicated circumstance" due to the differing opinions of Vargo and Attorney General Jason Ravnsborg. "We are hopeful that the state and county's top prosecutors will work to get this resolved in a timely manner, and we will reassess as appropriate."
Ravnsborg believes hemp-derived CBD oil is illegal because hemp is part of the genus cannabis and that group of plants is illegal under the state's two definitions of marijuana, his spokesman Tim Bormann told the Journal last week. "Hemp, whether industrial or not, along with CBD oil, in any form, is illegal," Bormann wrote.
Vargo previously expressed doubt about Ravnsborg's recent announcement that CBD oil is illegal. He said he came to his decision after speaking with Ravnsborg's staff and examining relevant state laws. He said if companies that sell CBD-oil products are accurately describing them, they don't fall under either of the state's two definitions of marijuana and are not listed as a scheduled drug.
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Vargo warned, however, that even if local law enforcement agencies decide not to arrest and prosecute people for possessing hemp-derived CBD oil, the Attorney General's Office still can do that in Pennington County.
The owner of the Hemporium in Rapid City hailed Vargo's decision.
"I'm overwhelmed, ecstatic, grateful to Mark for his prompt decision-making and honesty on this matter," Leonard Vandermate said after hearing the news. Vargo had "done a great job of dissecting the laws."
After Ravnsborg's announcement, Vandermate said he and his clients were worried they would be arrested.
"Now, we don't have to be afraid to sell or buy these products. It makes it so now we can actually get back to business rather than worry about looking over our shoulder all the time," he said.
Melissa Mentele, executive director of New Approach — a statewide group that advocates access to CBD oil and all uses of the cannabis plant — called Vargo's decision "amazing."
"This is huge, especially for our children that are using CBD for seizures" and hospice patients, Mentele said. She said parents who use CBD oil recommended by their doctors were afraid they would be arrested.
"It's been very clear since SB 22 was signed into law that (CBD oil) wasn't illegal," Mentele said of the senate bill approved in the most recent legislative session that took generic hemp-derived CBD oil off the scheduled drug list and made Epidiolex — a FDA-approved marijuana-derived CBD oil used to treat seizures and other medical conditions — legal when prescribed.
Mentele said she's waiting to see the result of the case against a man arrested recently with CBD oil at the Sioux Falls airport. She noted that it's the state's burden to prove he broke a law.