There’s a jar in the GrassRoots smoke shop on Rapid City’s north side collecting tips for a purpose.
“We’re going to rent a bus and a driver and go all the way to Pierre,” Sharon Neva, the shop’s owner, said Thursday.
The farm bill awaiting President Trump’s signature aims to legalizes industrial hemp and its offshoot products across the country — but not necessarily in South Dakota. With that in mind, local merchants who previously sold cannabidiol (CBD) oils and lotions, especially the hemp-extracted kind with cures reported for aches and pains to anxiety and seizures, want to be heard at the legislative session in January.
“They (legislators) can look us in the eye and tell us they don’t care,” said Neva, who believes the Legislature needs to overturn parts of a 2017 law that criminalized CBD by making it a schedule 4 illegal substance, the same as narcotics.
Leonard Vandermate, the owner of the Hemporium Boutique, was among those who sold CBD oils in Rapid City until law enforcement from the county and state told him to remove the products from the shelves of his store, which opened in 2017. Since then, he’s felt the sting of the state’s law.
“It’s been deadly slow,” he said last week. “We’ve been hanging on by a thread just trying to fight this thing.”
How CBD — oils with very low to no tetrahydrocannabinol (THC) levels derived from the seeds of marijuana and its non-psychoactive sibling hemp — have gone from “miracle drug” legalized for sale in several states, while still technically illegal at the federal level — to a narcotic in South Dakota is a long and winding road of state and federal lawmaking.
The 2014 Farm Bill’s Section 7606 allowed universities to perform research on industrial hemp, which created an opening for manufacturers. Then, a small section in the 2016 federal Omnibus Bill went a step further and allowed hemp to cross state lines.
Vandermate started an online company in 2015, and sold CBD oil — which users can apply in lotion form to aches or take orally to reduce anxiousness — at a tent at the 2016 Sturgis Motorcycle Rally.
“The police van was sitting right there,” he said. “The cops would come on in, check us out, and they were completely fine with it.”
But then came Senate Bill 95 in the 2017 South Dakota Legislature. Proponents saw SB 95 a way to catch up with the rest of the country in legalizing some cannabis-derived medication. Critics called it a monopoly takeover.
“South Dakota has a tradition of being a petri dish for these big companies that come in and want to test legislation on us,” said Pat Cromwell, of Rapid City, who promoted a change to SB 95 when she ran unsuccessfully for the state senate last fall. “What happened here was ‘Big Pharma’ came in and wrote themselves into the backdoor to be the only drug company able to lay claim to CBD products.”
Sioux Falls Sen. Blake Curd, a Republican, authored SB 95, which sought to legalize a hemp-based version of CBD for medicinal purposes. Curd testified before a Senate committee about the lack of hallucinatory effects of CBD oils, especially those derived from hemp.
“You’re more likely to drown in hemp than get high from it,” Curd said.
The legislation cut CBD out of the criminal definition of marijuana. However, an early amendment sought and received by GW Pharmaceuticals, a British company that also goes by the name Greenwich Biosciences and had two lobbyists in Pierre, stipulated that only CBD with FDA approval should be decriminalized.
At the time, GW’s product, Epidiolex, a medication that treats seizures in children, was proceeding through FDA trials. The amendment passed 4-3. The final text version of SB 95 as it passed into the House categorized CBD that did not receive FDA approval a schedule 4 of illegal substance. Suddenly, several distributors across the state, including Vandermate and Neva, were set to face a class 4 felony, or 10 years in prison or a fine of $20,000 for selling CBD.
While other states paved and widened roads for hemp-derived products and supplements, South Dakota put up a one-lane tollway. When Gov. Dennis Daugaard signed the bill into law on March 27, he essentially legalized one product — Epidiolex — that wouldn’t be sold in South Dakota pharmacies and shops for another year and made criminal the possession and sale of many hemp-derived, low-THC-containing products already on store shelves.
In April 2017, Neva removed CBD products — what she calls 65 percent of her business — from the inventory of her Rapid City store.
“It really hit us,” she said. “Hopefully, CBD will be legal again, and we can start carrying it again. I had one gal in here crying, saying, ‘my father has stage 4 cancer and before he started taking CBD he was just in bed, he was ready to die. Now, he’s up again enjoying life.
In the year-and-a-half since, users of CBD have drifted to other products or places, Neva said. Those interviewed by the Journal said they’ve sought products online, through the mail, or by traveling to Colorado or Montana.
There’s a risk, however. A Nebraska couple selling CBD products faced prosecution in Nebraska, which is one of the three states, along with South Dakota and Idaho, that doesn’t allow CBD without FDA approval or a doctor’s prescription.
Some are willing to take a chance, though.
Myrriha Roush suffers from hip dysplasia. At times, she could barely walk, arriving to work at her job in the Black Hills only to be sent home by supervisors. Then, she started taking the gummy bear form of CBD after it was offered by a friend. The results astonished her.
“It worked,” Roush said. “For the first time in a long time, I could run without pain, without having to swing my leg to the side.”
Roush has since matriculated to a $40-a-bottle version that is derived from marijuana. Although her product, she said, still has under 0.3 THC content (not enough to derive any euphoric feeling), marijuana-derived CBD would not be legal in South Dakota even with a repeal of SB 95’s FDA-stipulating amendment. Still, Roush believes such a move would be a good start.
“Some of my friends do have good results with the hemp stuff,” she said. “One gets help with her seizures. So, it wouldn’t help me out too much, but for my friends, it definitely would.”
The state’s attorney general’s office, said in an email to the Journal that CBD oils — even the hemp-derived variety — will not be legal without FDA approval even after President Trump signs the $867 billion 2018 Farm Bill, which recently passed the U.S. Senate and House.
Given the doctrine of preemption would in theory suggest a federal legalization of hemp would overrule a state drug scheduling, some expect relief to be sought in the courts.
“What’s going to happen is this will be a lawsuit,” said Eric Schlimgen, a Rapid City attorney who has researched and written about the state’s marijuana laws. “Some store that has the resources to stock this and bring a lawsuit could challenge the law in light of the new farm bill, or it could be financed by one of the companies that makes the product.”
State Sen. Susan Wismer, of Britton, said Wednesday she intends to bring legislation to Pierre that will seek to pull back the FDA requirement from CBD products.
“It’s always been shot down because it’s not been legal at the federal level,” she said. “And we had no interest in passing legislation that was going to make us in violation of federal law, but now that hurdle appears to be gone.”
But any change could still face steep opposition. In part, as Cromwell noted, a stigma remains against CBD oils, even those made from hemp.
“You wonder, ‘will I be labeled another person pushing for marijuana? A pothead over 60?'” Cromwell asked. “There’s a general sense that this is coming all across the country, but we’ll probably be last because that’s just how we like to roll in this state.”
A spokeswoman for Gov.-Elect Kristi Noem’s incoming administration said the new governor would likely not be interested in touching the CBD stipulation as currently written in the law.
“Governor-elect Noem maintains that substances derived from cannabis should go through the proper FDA approval process, as other medications are required to do,” Noem’s Press Secretary Kristin Wileman said via email.
At Vandermate’s shop, he’s rounding up people for his new political organization — CBD4SD. After multiple surgeries, he found relief from CBD and says many others have, too.
“From adults who live in chronic pain our options are really limited,” he said. “We either live with chronic pain and our quality of life is reduced to being hermits in our household, or we break the law to risk having CBD oil in our possession.”
Back in the GrassRoots shop in Rapid City, Neva is trying to plan for a future whichever way the road leads. After pulling CBD from her shelves, she started carrying kratom, a plant from southeast Asia long used for its medicinal value.
“It’s a great alternative,” Neva said. “Some people, it’s not for them, but there’s a market for it. I had a vet in here — who has anxiety, PTSD — who’d been buying kratom online, but he was relieved to have a place locally to shop. You know, it’s just a plant, whereas we’d apparently rather send people toward opioids. It doesn’t make any sense.”