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Wyoming legislator Bunky Loucks has a message for South Dakota Gov. Kristi Noem about hemp legalization.

“Tell her I hope she vetoes it, because that would be good for Wyoming,” he said.

Loucks, a Republican representative from Casper, sponsored a bill this winter to legalize hemp. The bill passed the Wyoming House 60-0, the Senate 26-3-1, and then the House again 56-3-1 after being amended in the Senate. Wyoming Gov. Mark Gordon, a Republican, signed the bill into law Wednesday.

Loucks figures if Noem, a fellow Republican, vetoes a bill to legalize hemp in South Dakota, there will be less competition for the Wyoming hemp industry.

The South Dakota hemp legalization measure, House Bill 1191, passed the state Senate 22-14 on Wednesday after passing the House 65-2 on Feb. 11. If the House approves the Senate’s changes, Noem will face a decision to sign or veto the bill.

Noem has not explicitly said whether she would veto the bill but has spoken out against it, saying hemp legalization would amount to “opening the door to allowing marijuana to be legalized.” Her spokeswoman did not respond to a Journal interview request.

Hemp and marijuana are similar-looking members of the cannabis family of plants, but hemp does not induce a high when ingested. Nevertheless, hemp has never fully escaped its popular association with marijuana, and federal law banned the growing of hemp for decades despite the plant's usefulness in an array of products including fabric, food, paper, lotion and biofuel.

In 2014, Congress passed a farm bill that authorized limited hemp farming in conjunction with university research and pilot projects, but only in states that decided to allow it. In the 2018 farm bill, Congress legalized industrial hemp at the federal level but left states and tribal governments with the discretion to regulate it themselves, to allow it under federal regulations, or — according to some interpretations — to ban it. No state or tribe can stop legally produced hemp from being transported through their jurisdictions.

According to the National Conference of State Legislatures, 41 states allow hemp cultivation and production. South Dakota is one of the nine states that does not.

Wyoming has technically allowed hemp cultivation by licensees since the passage of 2017 legislation, but according to Loucks, that bill was never implemented by the administration of then-Gov. Matt Mead, who allowed the bill to become law without his signature. The new bill was signed by Gov. Mark Gordon, who was elected in November.

Among South Dakota’s other neighboring states, Montana, North Dakota and Minnesota have licensing programs for industrial hemp, which they’ve been operating under the terms of the 2014 farm bill and plan to continue operating. North Dakota and Montana preemptively legalized hemp in advance of federal legalization — North Dakota in 1997 and Montana in 2005 — so as to be ready when the federal government finally loosened its laws in 2014.

Nebraska has a pilot program limited to university research, and the Nebraska Legislature is now considering a bill to create a licensing program for additional hemp cultivation and production. Similar legislation is under consideration in Iowa, which like South Dakota has no pilot program.

In South Dakota, Noem has not only said she’s concerned about hemp legalization being a gateway to marijuana legalization, but she is also concerned it could be difficult for law enforcement officers to distinguish between marijuana and hemp.

In North Dakota, Agriculture Commissioner Doug Goehring said, “That’s not even an issue.”

The North Dakota Department of Agriculture maintains information on the location of every licensed hemp field in the state, Goehring said, and the information is available to law enforcement officers.

“If they come across something that’s not in our system, they can check with us, and the crop can be destroyed,” he said.

Similar policies exist in Montana and Minnesota. In all three states, hemp growers and processors must apply for a license, and in some cases must submit to fingerprinting, background checks or both. Fees for grower licenses range from $25 to $550, depending on the state and the acreage planted, and the fees are used to help cover the costs of administering the licensing programs.

The hemp in each state is scientifically tested — at regular intervals, at random times or both — to verify that the psychoactive compound known as tetrahydrocannabinol, or THC, is below the legal limit of 0.3 percent.

The bill recently approved in Wyoming and the bill under consideration in the South Dakota Legislature both contain licensing programs for industrial hemp that are similar to the existing programs in neighboring states.

Montana’s hemp industry is the biggest by acreage in the region and the nation, with 58 growers who planted 22,000 acres of hemp last year. North Dakota had 42 growers last year, and Minnesota had 65, but only several thousand acres of hemp were grown in those states. Nationally, according to the advocacy group Vote Hemp, 78,176 acres of hemp were grown in 2018.

One of the factors affecting the growth of the U.S. hemp industry and the fate of South Dakota’s current hemp legislation is rampant confusion about the legality of cannabidiol, which has exploded in consumer popularity during the past few years.

Cannabidiol, popularly known as CBD, is a chemical compound that can be extracted from hemp or marijuana for use in products that are often claimed to have therapeutic benefits.

The 2018 farm bill removed hemp-derived CBD from the federal controlled substances list, but left intact the regulation of CBD by the U.S. Food and Drug Administration.

The FDA has since pledged to review its stance on CBD, but in the meantime, the FDA has said it’s illegal to introduce food containing added CBD into interstate commerce, or to market CBD dietary supplements.

Additionally, the FDA requires any CBD product that is marketed with a claim of therapeutic benefit, or with any other disease claim, to gain FDA approval.

So far, the only CBD product approved by the FDA is Epidiolex, an oral solution available by prescription to treat seizures associated with two rare and severe forms of epilepsy.

In South Dakota, CBD products other than Epidiolex remain illegal, according to prevailing interpretations of state and federal law. Some local stores, including in Rapid City, have been ordered by law enforcement officers to stop selling CBD products. Yet CBD products remain widely available on the internet, legally or not.

South Dakota’s pending hemp legislation, as currently written, would legalize CBD at the state level. But its sale would still be subject to FDA regulations.

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Contact Seth Tupper at seth.tupper@rapidcityjournal.com

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Enterprise Reporter

Enterprise reporter for the Rapid City Journal and author of "Calvin Coolidge in the Black Hills."