Latest news on South Dakota’s marijuana legalization measures

July 1 — Medical marijuana advocates in South Dakota marked and mourned the passing of Larry Smith, an inspiring figure whose spirit infused the state’s push to legalize cannabis in the Nov. 2020 election. Smith died on June 25 in hospice in Sioux Falls, SD. Read more about the life and legacy of Larry Smith here.

South Dakota Constitutional Amendment A

Read the full proposal here: Constitutional Amendment A (legalizing recreational marijuana)

South Dakota Initiated Measure 26

Read the full proposal here: Initiated Measure 26 (legalizing medical marijuana)

Medical or adult use?

Both. Constitutional Amendment A (CA-A) would legalize the adult purchase and possession of cannabis. Initiated Measure 26 (IM-26) would legalize medical marijuana.

What Constitutional Amendment A would do

Constitutional Amendment A (CA-A) would legalize the recreational use, possession, and distribution (up to one ounce) of marijuana for individuals 21 years old and older. Additionally, the amendment would require the state legislature to create a medical marijuana program and legalize the sale of hemp by April 1, 2022. Furthermore, it would require all revenue—aside from implementation costs—to be split between the state’s general fund and public education system.

What Initiated Measure 26 would do

Initiated Measure 26 (IM-26) would establish a medical marijuana program for individuals with a physician-certified debilitating medical condition (including minors). Patients would be allowed to possess a maximum of three ounces of marijuana, plus additional marijuana products. Patients could grow at least three plants at home, and more with a physician’s approval. The program’s rules would be established and enforced by the South Dakota Department of Health.

What the latest polls say

No polling available yet.

Legalization initiative supporters

CA-A sponsor: Brendan Johnson, former US Attorney for South Dakota. Johnson served as US Attorney from 2009 to 2015, one of the longest tenures in state history.

IM 26 sponsor: Local activist Melissa R. Mentele. A member of a longtime South Dakota agricultural family, Mentele has been a driving force for progressive cannabis law reform in the state for many years.

Supporting organizations: 

  • South Dakotans for Better Marijuana Laws
  • Marijuana Policy Project
  • New Approach PAC

Supporting individuals:

  • Drey Samuelson, political director for both campaigns and former chief of staff for Sen. Tim Johnson (D-SD)

Legalization initiative opponents

  • South Dakota Chamber of Commerce
  • Gov. Kristi Noem (R)

Would cannabis stores be licensed?

Under CA-A, recreational cannabis stores would be licensed by the Department of Revenue (which would oversee the adult-use retail program). Local governments would have the legal authority to ban any category of license (cultivation, testing, wholesale, retail). Source

Under IM-26, medical marijuana dispensaries would be licensed and regulated by the South Dakota Department of Health.

Would marijuana be taxed?

Adult-use cannabis would be subject to a 15% tax at retail. Medical marijuana would not be taxed.

5 things to know about South Dakota Constitutional Amendment A

  • CA-A still allows for $250 fines if homegrown plants are visible to the public, if plants are not kept in a locked space, or if plants are being grown in a jurisdiction that has retail stores (unless homegrow has been authorized in that jurisdiction).
  • Additionally, the amendment allows for $100 fines for public consumption (unless that place has been licensed for consumption and $100 fine or four hours of a drug education/counseling program for a minor caught smoking marijuana).
  • The amendment requires the state legislature to pass separate laws regarding medical use of marijuana. Furthermore, it requires the state legislature “to pass laws regulating the cultivation, processing, and sale of hemp.”
  • The bill is being endorsed by a coalition of over 50 South Dakota thought leaders, including legislators, venture capitalists and Flandreau Santee Sioux Tribe President Tony Reider. Source
  • Recreational marijuana could generate “more than $10 million in the fiscal year 2022 and in excess of $29 million in the fiscal year 2024.” Source

5 things to know about South Dakota Initiated Measure 26

  • Qualifying conditions for medical marijuana patients include “cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.” The Department of Health can add to this list.
  • IM-26 makes it clear that the Department of Health must treat the medical marijuana patient registry as private health information that cannot be shared or disclosed except in very limited and specific cases. This is a safeguard built into the law to protect the privacy of South Dakota’s law-abiding firearm owners.
  • Non-residents may use out-of-state registration cards to purchase and possess medical marijuana in South Dakota.
  • The initiative does not prevent an employer from disciplining an employee for consuming or being under the influence of cannabis in the workplace.
  • The initiative requires that any hard drive or other data-storage device owned by the Department of Health that is no longer in use must be destroyed, to protect patient privacy.

Current cannabis law in South Dakota

Officials at Marijuana Policy Project say South Dakota’s current possession laws may be the most draconian in the country:

Possession of just a small amount of marijuana in South Dakota carries a potential penalty of a year in jail and a $2,000 fine. Individuals who have consumed marijuana elsewhere are also subject to this penalty if they test positive for past use—even if they consumed marijuana in a state where it was legal. South Dakota appears to be the only state with such an “internal possession” law.

In addition, possession of any amount of hash or concentrates is a felony, punishable by up to five years in prison and a fine of up to $10,000. Even just possessing drug paraphernalia, like a marijuana pipe, in South Dakota can land you a misdemeanor charge, up to 30 days in prison, and up to a $500 fine.

Quotes from advocates

  • “I think what we’re going to see in South Dakota on this issue is really a coalition of both Democrats and Republicans coming together and [saying] prohibition does not work. It has not worked in the past. And it’s time, for the interest of our economy as well as the next generation, to get this right.” – Brendan Johnson, CA-A sponsor and former US Attorney for South Dakota
  • “I do foresee South Dakota voters taking a perfectly hard look at it. A lot of them [are] voting with their heart, because we’re a compassionate state and we understand that taking care of each other is what is important. And giving these patients that option is probably going to happen. I think it’s a great thing for everyone.” – Melissa Mentele, IM-26 sponsor 

Quotes from opponents

  • “The governor has always opposed legalizing marijuana and therefore opposes these measures.” – Ian Fury, spokesperson for Gov. Kristi Noem
  • “If you’re going to have to change anything it’s going to require a statewide vote. This is something for the legislature to deal with. Our concerns [are] on the workforce. The fact that there’s no way to test whether someone is impaired.” – David Owen, president of the South Dakota Chamber of Commerce

Read more about South Dakota on Leafly:

  • South Dakota voters will face double legalization ballot in November
  • Oglala Sioux tribe approves medical, recreational marijuana
  • South Dakota tribe set to vote on legalizing cannabis
  • Cannabis trial of the year opens in Flandreau, South Dakota
  • South Dakota House blunts GW Pharma bill
  • Leafly exclusive: GW Pharma is moving CBD bills on the down low
  • Report from the front: The trouble with cannabis in Indian Country

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