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Is possession of CBD oil legal in South Dakota?

On Behalf of | Jan 23, 2020 | Firm News |

It’s a surprisingly difficult question to answer.

Most states across the country have made it a point to legalize CBD oil in recent years. Short for cannabidiol, CBD is an active ingredient in cannabis and derives from the hemp plant. It does not, however, cause a high, and now frequently appears in supplements such as CBD oil.

Despite the rising popularity of CBD oil, its legal status in South Dakota is quite murky. Is it legal or illegal? At the start of 2020, it is hard to say.

Why there is so much confusion

To understand where CBD oil is right now, we need to go back a few years.

As the Argus Leader explained in 2019, CBD had previously been added to the state’s controlled substance schedule. That meant selling, manufacturing or possessing something like CBD oil could be considered criminal. When the state made that decision, it also removed any mention of CBD from the state’s definition of marijuana.

Then, in the spring of 2019, state lawmakers chose to reverse the earlier decision and removed CBD from the state’s list of controlled substances. However, they then declined to add CBD back to the definition of marijuana. This resulted in something of a legal gap.

Open to interpretation

This legal gap leaves the status of CBD oil in South Dakota open to interpretation. The South Dakota attorney general, in March of 2019, insisted possessing or using any CBD oil product remains illegal, even if the law does not explicitly say so.

However, some state’s attorneys in certain counties don’t see it as clearly. The Pennington County state’s attorney, for example, opted to not pursue CBD oil cases because he doesn’t believe state law criminalizes it. The state’s attorneys for Minnehaha and Lincoln counties, meanwhile, said they would consider situations on a case-by-case basis – but suggested consumers “err on the side of caution” for now.

Essentially, they suggest refraining from possessing, selling or manufacturing CBD oil.

Can someone be charged for having CBD oil?

The manufacture, sale or possession of a scheduled substance can be a misdemeanor or felony, depending on the type and amount of the substance. This means the potential penalties can swing dramatically, from a small fine to a significant prison sentence.

So, if you are caught possessing, selling or manufacturing CBD oil, will you face criminal charges? In counties where prosecutors have determined the law does not make CBD oil illegal, maybe not. But in other areas of the state, you may wind up staring down a daunting criminal case, including being charged with a felony

State lawmakers may choose to clarify the situation in the months ahead. Until that happens, anyone charged with a crime due to CBD oil could find themselves in a tricky legal gray area.