The ‘fake weed’ ban will come into effect on Monday amid an ongoing lawsuit against it | The mighty 790 KFGO

BY: JOHN HULT

PIERRE, SD (South Dakota Searchlight) – A new law banning the production or sale of high-inducing cannabis products will go into effect Monday after a judge refused to block it.

Hemp Quarters 605, a Pierre-based store that sells the products, filed suit earlier this month in U.S. District Court in South Dakota. The business claims the new law’s provisions are unconstitutional and violate federal law.

The 2018 federal agriculture bill legalized the production and sale of industrial hemp and hemp products as long as they contain less than 0.3% of the intoxicating compound delta-9-tetrahydrocannabinol, known as THC, on a dry weight basis.

House Bill 1125, signed into law by Gov. Kristi Noem in March, targets five types of chemicals that are found in small amounts in cannabis plants. The chemicals can be synthesized and added in quantities large enough for hemp products to mimic the intoxicating effects of delta-9 THC found in marijuana.

Marijuana remains illegal at the federal level, even though it is legal in some states, and medical marijuana is legal in South Dakota.

A violation of the new law will be a Class 2 misdemeanor, the state’s lowest felony. Like most laws passed by the Legislature, its effective date is July 1.

Products like gummies, vaporizers and combustible cannabis containing chemicals covered by the new law are widely available throughout South Dakota, sold at gas stations, grocery stores, liquor stores and specialty tobacco shops like Hemp Quarters 605.

The company asked U.S. District Judge Eric Schulte for a preliminary injunction blocking the law from taking effect until the case is resolved in court.

At Thursday’s hearing on that injunction in Pierre, representatives of Hemp Quarters 605 testified that hemp-derived products account for more than two-thirds of their retail sales.

They claim the state is violating the Commerce Clause of the U.S. Constitution by interfering with the sale of federally legal products across state lines. The injunction is appropriate, they say, because they will suffer irreparable harm once the law goes into effect – namely, the potential closure of their business.

To obtain a preliminary injunction, plaintiffs must first prove they are likely to “prevail on the merits,” according to an opinion filed electronically Saturday by Judge Schulte. If the plaintiff – in this case, the cannabis store – succeeds in achieving this goal, the judge must then find that without the injunction, the plaintiff would have suffered irreparable harm. The judge must also consider the broader implications of the order for other “interested parties” – in this case, the state and those affected by the new law.

Denying a preliminary injunction does not resolve the case or guarantee a victory for the state, represented in this case by Attorney General Marty Jackley’s office.

Judge Schulte found that Hemp Quarters’ arguments were not sufficient to obtain an injunction, even if the law could cause irreparable harm to its business.

The 2018 farm bill did not explicitly prohibit states from passing laws regulating hemp commerce. In fact, Schulte wrote, it did the opposite, allowing states to impose “more stringent” hemp regulations.

“The Legislature’s passage of HB 1125 falls within the scope of police powers traditionally reserved to the states as it is intended to promote the health and well-being of South Dakotans,” Schulte wrote.

Schulte cited a case involving a challenge to a Virginia law regulating hemp in which a judge reached a similar conclusion.

Under the Commerce Clause, Hemp Quarters argued that a Minnesota truck driver transporting federally legal hemp through South Dakota could be subject to state prosecution.

Schulte disagreed. He wrote that the law would not apply in such a scenario because it does not criminalize possession of cannabis products. It only prohibits their production or distribution.

The opinion also noted that the Hughes County State’s Attorney said he did not plan to immediately prosecute the owners of Hemp Quarters. The Attorney General’s Office made no such promise, Schulte wrote, but state attorneys pointed out that “the South Dakota Attorney General’s Office does not typically prosecute misdemeanors like those contained in HB 1125.”