BROOKINGS – Brookings County State’s Attorney Dan Nelson says that individuals found in possession of CBD oil will not be prosecuted in Brookings County.

Nelson made the announcement at Tuesday’s Brookings County Commission meeting. His decision is in line with several other state’s attorneys in South Dakota following a state law change this past legislative session.

The 2019 South Dakota Legislature decriminalized cannabidiol (CBD) that does not contain an intoxicating level of THC, the psychoactive compound of marijuana. Senate Bill 22 removed CBD from the state’s controlled substance list to mirror federal law. In South Dakota, it had been listed as a schedule 4 controlled substance.

“There’s kind of some disagreements as to why the Legislature did that,” Nelson said of the decriminalization of CBD. “Some think that it was intentional. Others think that it was a mistake. But as the law reads right now, CBD is not listed as a controlled substance.” 

Also this past legislative session, Gov. Kristi Noem vetoed HB 1191, a bill to legalize the growth and production of industrial hemp, an industry that is legal in several other states and is the leading source of CBD oil. The 2018 federal Farm Bill legalized hemp.

Noem wrote in a public letter to lawmakers that she was worried this bill would create greater issues for law enforcement, focus more on commercial industry rather than local farmers, and would further promote the desire to legalize recreational marijuana. Lawmakers failed to come up with enough votes to override Noem’s veto.

Noem’s veto and removing CBD from the controlled substance list create a legal chasm because an individual can possess CBD but not produce it. 

“Now state’s attorneys including myself, Pennington, Lincoln, Minnehaha, and Brown (counties), believe that there is a gap in the law right now,” said Nelson.

“There’s not a basis under the law as it’s written now to prosecute it as controlled substance. So then we look at the definition marijuana. As marijuana is defined under South Dakota law right now, it has to be in an unaltered state, and CBD is an altered state of marijuana, so it actually doesn’t fit the definition marijuana either.”

Nelson warns against the possession of CBD despite the gap in the law. 

“I am not advising anyone in the state of South Dakota to be in possession of it (CBD oil) until there is a definitive ruling on it,” continued Nelson. “The Attorney General’s office has issued a memorandum saying that regardless of whether or not CBD oil contains THC, he can still prosecute it as a felony. If you are found in possession of CBD, you will not be prosecuted for it in Brookings County.”

An exception is if the CBD is sent out to the state health lab and tested and meets the definition of marijuana. “If the presence of THC is found, then it’s completely different. Then we can initiate a prosecution on that.”

Contact Matthew Rhodes at mrhodes@brookingsregister.com.