Attorney General Jason Ravnsborg had a simple message regarding CBD oil and hemp: It’s illegal in South Dakota. Rarely has an attorney general been so reticent, pronounced such unqualified certitude or been so legally unconvincing.
Pennington County State's Attorney Mark Vargo said Tuesday he presently has no plans to prosecute hemp-derived CBD oil cases given its indeterminable legal status.
Good. Vargo’s office undoubtedly has more important matters to pursue than chasing CBD users down a legal rabbit hole.
If Ravnsborg had hoped to project certainty with his concise but poorly explained decree, he failed. And so what was before an untidy legal quandary has been rendered slovenly.
People already faced uncertainty travelling into South Dakota with CBD oil — a substance that can be derived from hemp or marijuana and contains only trace amounts of THC, the high-inducing compound. In Sioux Falls, an Alaska man was recently arrested at the airport on felony possession of CBD oil. He explained it’s legal where he’s from.
That same uncertainty now extends to anyone moving CBD oil from county to county in South Dakota.
Considering hemp-derived CBD oil? Ask yourself: Do I feel lucky?
Well, do ya, punk?
Because it’s geographical roulette. Individual state’s attorneys must stake out their own positions.
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Contradictions exist up and down the hemp and CBD regulatory regime.
• The 2018 farm bill normalized hemp and hemp products from approved sources but the Department of Agriculture has yet to issue its approval guidelines. In states which opt not to devise a hemp regulatory program, USDA will construct one under which hemp cultivators can apply under the federal program. That also is pending.
• Like marijuana, CBD oil remains illegal under federal drug laws, but FDA leadership clearly recognized the intent of lawmakers with the 2018 farm bill. Still, the FDA path for CBD approval undoubtedly will be long.
• The 2018 farm bill, meanwhile, prohibited states from restricting the interstate transport of hemp and hemp products, but Idaho recently charged a truck driver under anti-marijuana laws for hauling 6,700 pounds of hemp. Court hearings for the driver, released on a $1 million bond, are scheduled for fall. Meanwhile, the 9th U.S. Circuit Court of Appeals could issue a ruling regarding the confiscated hemp as early as next month.
In South Dakota, Vargo found himself hung up on whether hemp-derived CBD oil was clearly illegal — either under schedule 4 of restricted substances or under the definition of marijuana. He determined that hemp-derived CBD is not marijuana under state statutes. To complicate matters, state lawmakers doing a routine update inadvertently struck CBD from the state classification of scheduled drugs and inserted the name of the FDA-approved CBD drug Epidiolex, which is derived from marijuana. That allows some to argue the state technically struck its ability to regulate generic hemp-derived CBD oil under its drug schedules.
Vargo apparently didn’t want to find himself before a jury attempting to argue these kinds of technicalities.
Maybe the confusion also explains why Ravnsborg was so circumspect in his statement, never responded to the Journal’s requests for further clarification, failed to speak with or explain his pronouncement to the state’s attorney beforehand, and directed anyone seeking clarification to call their state’s attorney. Ravnsborg issued a political decree rather than a legal judgment.
We applaud Vargo for examining the laws, identifying the holes and bravely determining that, as far as he can tell, the emperor has no clothes — made from hemp or otherwise.