Is CBD oil illegal? Confusion reigns over South Dakota's law

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The legality of selling and possessing CBD oil in South Dakota is murky after a changed state law has resulted in differing opinions.

As the state Legislature was concluding its work in March, new state Attorney General Jason Ravnsborg announced that all forms of CBD, also called cannabidiol, oil are illegal in South Dakota.

But prosecutors responsible for potentially charging people with selling and possessing CBD oil aren't as certain. Some businesses in Sioux Falls are stocking CBD oil, while others have pulled it from their shelves and business owners say customers are uncertain about whether they can legally purchase it.

Joshua Sopko started selling several forms of CBD oil in his Sioux Falls store Juniper a couple weeks ago because customers were consistently ask for it and it fit with the store's mission of providing natural healing products. His products come from a company that processes it from hemp seed to the final product, so he knows its origin. He said he believes it's legal to sell CBD oil in South Dakota, but he's still concerned that he could be arrested and prosecuted for it.

"I don't believe the state has any right to legislate something like this. It's a supplement. It's no different than vitamin water or 5-Hour Energy or any number of essential oils that people take on a daily basis," Sopko said.

Legislative changes leave 'gap'

The 2018 federal Farm Bill federally legalized hemp, a variety of the cannabis plant that can be harvested for cannabidiol, which doesn't have intoxicating effects.

Although products containing CBD are growing in popularity nationwide, there's few federal guidelines in place yet. The U.S. Department of Agriculture is expected to release hemp guidelines this fall and the U.S. Food and Drug Administration has formed a working group to study how CBD can be legally marketed. 

In 2017, the South Dakota added cannabidiol to the state controlled substance schedule — a list of substances tightly monitored by the government because they can be abused and cause addiction. At the same time, they exempted "cannabidiol, a drug product approved by the FDA" in the definition of marijuana. 

Lawmakers reversed that decision this year by eliminating cannabidiol from the state schedule to mirror federal law, which doesn't have cannabidiol on the controlled substance schedule. But they didn't alter the definition of marijuana.

The Legislature also defeated the bill to legalize industrial hemp this year, which would have clearly legalized CBD oil in the state.

The changes have left "a gap" in the state's controlled substance laws, according to Minnehaha County State's Attorney Aaron McGowan and Lincoln County State's Attorney Tom Wollman

"This gap has left the legality of CBD oil products open to different interpretations," they said in a joint statement.

Pennington County State's Attorney Mark Vargo said he has decided to not prosecute any cases involving CBD oil because he doesn't believe state law as its written now criminalizes CBD — as long as the product truly contains CBD and isn't marijuana.

"If it really is just the CBD oils made from the seeds of marijuana or hemp, those aren't illegal under South Dakota statute," he said.

Ravnsborg's March 25 announcement stated that use or possession of all forms of CBD oil are illegal under state law except for the FDA-approved prescription drug Epidiolex, which is used to treat a rare form of epilepsy.

Ravnsborg's determination was based on the definition of marijuana in the controlled substances schedule and the law defining controlled substance crimes in the state, said Tim Bormann, Ravnsborg's chief of staff. Ravnsborg's position is that "CBD oil is a product of the marijuana plant, the genus cannabis plant," he said.

The Legislature, not the executive branch, decides state laws and the legislative branch removed CBD from state law, Vargo said. 

"The executive branch shouldn't be governing by presumption," he said.

He said the different opinions mean Pennington County residents don't know whether they can legally possess CBD and if the Attorney General's Office could prosecute the cases if he doesn't.

McGowan and Wollman have been discussing with law enforcement about how to handle cases involving CBD oil. They're reviewing it on a case-by-case basis and haven't made any permanent decisions about the topic, they said in the statement.

"In the meantime, any individual or business engaging in manufacturing, distributing or possessing such substances should err on the side of caution," they said.

How to clarify the depends on whether the Legislature intends for CBD to be legal, Vargo said. Lawmakers could put stopgaps into law treating CBD similarly to an over-the-counter drug if they are concerned about product quality control, or they could add CBD back into the felony controlled substance list or write CBD into law as a misdemeanor.

"They had a lot of different options available to them and when they removed CBD from Schedule IV, they did not utilize any of them," Vargo said.

Joshua Sopko, co-founder of Juniper Apothecary, holds a bottle of CBD oil, available for purchase at the storefront at 401 E. Eighth St.  Juniper received its first shipment of SUNSoil CBD oil products about two weeks ago.

Joshua Sopko, co-founder of Juniper Apothecary, holds a bottle of CBD oil, available for purchase at the storefront at 401 E. Eighth St. Juniper received its first shipment of SUNSoil CBD oil products about two weeks ago.

Already, a felony charge over CBD

Laws about CBD oil and how they should be applied to cases "are confusing at best," and when the American Civil Liberties Union started digging into it after Ravnsborg's March announcement, "it felt like we opened a can of worms," said Libby Skarin, policy director at the ACLU. 

One person in Minnehaha County is currently facing a Class 5 felony charge for possessing CBD oil — Alaska resident Bernard Davis, 57, was arrested earlier this month for having CBD oil at the Sioux Falls Regional Airport, according to his attorney Clint Sargent.

Although the ACLU isn't involved in that case, Skarin pointed out that a felony conviction carries prison time and having a felony record can affect a person's life and employment.

Melissa Mentele, executive director of cannabis reform group New Approach South Dakota, said the Legislature "can't put the horse back in the barn" at this point because there's too many residents using CBD oil.

"It's as illegal as the water coming out of your tap," Mentele said. "It is not illegal in South Dakota. You can't prosecute a case on a law that does not exist."

Sopko said he'd like to see clarification of the state law. One of the biggest problems is that customers are scared of CBD oil because of the different legal opinions in the state right now. He said he believes it's morally wrong for the state to dictate that they can't sell a product when the market is demanding that product.

"People come in and they'll ask me all about it and then say, 'Well, I don't want to have to hide this from the cops,'" he said.

The different opinions puts people at risk of breaking the law without realizing that they're doing it, Skarin said. "Ignorance of the law is no defense" is typically true, but that's not the case when it comes to CBD oil in South Dakota, she said.

"It's not ignorance of the law, it's not even being able to understand or we can't even agree as South Dakotans what our law means — and we're setting people up to fail and end up in prison or possibly with felony records for something that is completely inappropriate to have that kind of response to," she said.

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