South Dakota's hemp bill starting to take shape for 2020 legislative session

Lawmakers have begun writing a bill legalizing industrial hemp in South Dakota in 2020. 

The legislative Hemp Study Committee is building off the failed 2019 bill that would have legalized industrial hemp. However, the 2020 bill's language will be finalized after the U.S. Department of Agriculture announces its hemp program guidelines, which are expected by the end of the year, according to Rep. Lee Qualm, R-Platte. 

The hemp committee's meeting on Monday was the first time legislators gathered since Gov. Kristi Noem announced in a Wall Street Journal column that she plans to veto the hemp bill again in 2020 because law enforcement can't tell the difference between marijuana and hemp.

The tension between the two branches over hemp continued on Monday.

Noem claimed in her column that Texas prosecutors have dropped marijuana cases after its hemp law went into effect, but Qualm handed out a document from Texas' top officials negating Noem's statement. Legislators also heard about the "Purpl Pro," a new tool that can test a plant's THC level in the field.

Noem's list of 315 questions she wants legislators to answer about hemp also came up again on Monday, with Rep. Tim Goodwin, R-Rapid City, saying he wants Noem's Cabinet to answer her questions because that's the executive branch's responsibility. 

"She put them out, her Cabinet shouldn't just sit on their hands. They should answer them," Goodwin said. "They haven't worked on one answer yet, so they should do their job." 

More:Why S.D. lawmakers are bracing to fight Gov. Kristi Noem on hemp

Goodwin said he wants a formal request that Noem's staff answer her question, and Qualm responded he didn't believe they needed to formalize that, saying, "I'm pretty sure someone is listening (to the meeting) from the administration."

Goodwin brought the issue up again later in the meeting, questioning who's going to answer the questions. Qualm said he has no intention of answering Noem's questions, but they'll likely be answered after the USDA releases its guidelines and during the 2020 session.

What's in the hemp bill?

The proposed bill for the 2020 session will require permits from the state and background checks for owner-operators before they can grow hemp, and anyone in possession of hemp without a permit can be charged with a felony.

There was some concern among legislators on Monday that a background check will only be completed on the owner-operator and not all the employees handling it on a farm, but Qualm said the manager is responsible for employees and the operation.

The proposed bill will have a minimum amount of acreage required to grow hemp in South Dakota, but that exact number is still up in the air. Legislators on the committee want to keep the minimum acreage low to allow farmers to try growing hemp without having to plant a large crop.

The state's hemp program will also be separate from the nine tribes in South Dakota, who are considered separate entities from the state when it comes to USDA approval of their hemp programs.

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Rep. Nancy York, R-Watertown, said she wants to pass a bill that only legalizes industrial hemp that can be used in the textile industry and not for medicinal purposes such as CBD oil.

Rep. Oren Lesmeister, D-Parade, responded that hemp grown for only fiber also has oil, and they'll have a "huge pushback" if legislators leave out the CBD part of it. Their job as legislators is to allow South Dakotans to grow it and let federal agencies such as the USDA regulate it nationwide, he said.

Rep. Randy Gross, R-Elkton, pointed out that a lot of conventional agriculture products can also be used in medicinal products.

"The newness of this scares us. That does not mean we should not allow our producers the opportunity to take part in it," Gross said.

The hemp bill would have likely passed during the 2019 session if it hadn't included CBD oil, Qualm said, but that's an important part of it. He said he was skeptical about CBD oil until a year ago, but now he's a "firm believer" in using CBD oil because he knows too many people benefiting from it. However, it needs to be regulated, he said.

"I believe Big Pharma is not happy with CBD because it's going to change the amount of opioids that are being used," Qualm said.

How other states are policing hemp

The committee continued to hear from officials in states where hemp is already legal. During two hours of discussion on Monday, legislators heard about the hemp programs in neighboring states from Anthony Cortilet, the hemp program supervisor at the Minnesota Department of Agriculture, and Major Aaron Hummel with the North Dakota Highway Patrol.

Hemp was legalized in Minnesota in 2015, and the number of licensed hemp growers has boomed since then. The state had 600 applications for a hemp grower license, and about 10,000 acres of hemp are being grown in the state this year, according to Cortilet. 

Cortilet said he works with law enforcement daily because they're dealing with a plant that is legal if it has a THC content below 0.3 percent and is illegal if it's above that level. Most law enforcement in Minnesota isn't opposed to hemp, it's just a matter of knowing when to intervene, Cortilet said. 

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Hemp that's grown for grain or fiber typically has a very low THC level, and hemp that's grown for a CBD product is typically where they see plants near that 0.3 percent cutoff, he said. 

Law enforcement's concerns are an issue in every state, and it'll be an issue if South Dakota legalizes hemp, he said. But it shouldn't be a hindrance to legislators passing a law and having a good hemp program, Cortilet said.

"However, you do need to take that into consideration and the Department of Ag really needs to be prepared that whoever ends up with your hemp program is going to have to be prepared to work with law enforcement quite a bit because you want to protect the farmers that are really trying to do it right, and the ones that do it wrong give it a bad name," Cortilet said.

North Dakota Highway Patrol had some hurdles in the early stages of the state's hemp pilot program, but law enforcement doesn't have any problems with it now, Hummel said. They haven't had an instance where a vehicle's hemp load turned out to be marijuana, according to Hummel. 

Hummel said the only change he would like to see is requiring hemp transporters to have a manifest or paperwork showing the content of their load. They also hope to have state agriculture staff begin providing training to North Dakota law enforcement about hemp, he said.