‘Fake Weed’ Ban Goes Into Effect Monday, and Lawsuit Against It Continues | 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 company 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 smokable hemp containing the chemicals covered by the new law are widely available throughout South Dakota, sold at gas stations, grocery stores, liquor stores and specialty smoke 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.

During a hearing on the injunction held Thursday in Pierre, Hemp Quarters 605 representatives testified that hemp-derived products make up 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, a plaintiff must first show that he or she is likely to “succeed on the merits,” according to an opinion filed electronically Saturday by Judge Schulte. If the plaintiff – in this case, the cannabis store – is able to achieve this goal, the judge must find that the plaintiff would suffer irreparable harm without the injunction. The judge must also consider the wider implications of the order for other “interested parties” – in this case the state and those affected by the new law.

The denial of a temporary injunction does not end the case and does not guarantee a victory for the state, represented in this case by the office of Attorney General Marty Jackley.

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.

Addressing the Commerce Clause issue, Hemp Quarters argued that a Minnesota truck driver transporting federally legal hemp through South Dakota could be held liable by state authorities.

Schulte disagreed. He wrote that in such a scenario, the act would not apply 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 has said he has no immediate plans to prosecute the Hemp Quarters owners. The Attorney General’s Office has made no such promise, Schulte wrote, but state attorneys noted that “the South Dakota Attorney General’s Office does not typically prosecute offenses such as those contained in HB 1125.”