'Our state is not yet ready': Noem vetoes hemp legalization bill hours after passage

Industrial hemp produces a dense stand of plants. The seeds are harvested and can be used for oil products. The fiber of the plant stalks is currently not harvested in North Dakota. John M. Steiner / Forum News Service
Industrial hemp produces a dense stand of plants. The seeds are harvested and can be used for oil products. The fiber of the plant stalks is currently not harvested in North Dakota. John M. Steiner / Forum News Service

PIERRE, S.D. -- Mere hours after its passage, Republican Gov. Kristi Noem has vetoed a bill that would have legalized hemp in South Dakota, citing regulation and enforcement concerns, as well as "a national effort to legalize marijuana for recreational use."

Noem announced the evening of Monday, March 11, her veto of House Bill 1191, which would have legalized the growth and production of industrial hemp in the state. The bill was passed by a 58-8 vote in the House earlier the same day.

In Monday's release, Noem called HB 1191 "premature," saying that the state should wait for federal guidelines to emerge before moving forward with legalization.

The 2018 Farm Bill legalized hemp on the federal level in December. A South Dakota congresswoman at the time, Noem voted in favor of the bill package.

Noem said in her veto letter that she is concerned "this bill supports a national effort to legalize marijuana for recreational use," citing an "overwhelming number" of proponents of the bill being "pro-marijuana activists."

"There is no question in my mind that normalizing hemp, like legalizing medical marijuana, is part of a larger strategy to undermine enforcement of the drug laws and make legalized marijuana inevitable," she said.

Noem also cited enforcement concerns in her veto. She said law enforcement officers could have a difficulty deciphering hemp from its relative plant of marijuana, and said hemp legalization "provides a ready-made defense for those breaking our drug laws."

She also said it could complicate the state's ingestion law, which states that if THC is present in one's system, they can be found guilty of felony marijuana ingestion. If hemp and its derivatives are legalized, she said, law enforcement and courts could have difficulty deciphering whether THC in a suspect's system was from hemp or marijuana.

"As Governor, I will not leave it to our courts to interpret how this bill impacts our prohibition on the active ingredient in marijuana, and I do not believe the Legislature intended to complicate enforcement of our ingestion statute in this way," Noem wrote in her veto.

Hemp is not a drug. It is related to, but not the same as, marijuana. Hemp does not contain enough THC to induce psychoactive effects, or produce a high, when ingested.

Noem in her veto also said that HB 1191 "is less about helping farmers and more about commercial interest in one product: CBD." Cannabadiol, or CBD oil, can be extracted from either hemp or cannabis and used for homeopathic remedies.

Noem's office wrote a hoghouse amendment to HB 1191 to address her concerns, one of them being CBD oil. Her amendment would have made CBD oil a Schedule I controlled substance.

Noem previously said if her office's amendment was adopted, she'd consider signing the bill. HB 1191 prime sponsor Rep. Oren Lesmeister, D-Parade said the amendment ultimately adopted by the Senate had "close to 90 percent" of what Noem's team proposed, but not the CBD oil scheduling.

The Senate amendment instead said that CBD oil is legal in the state, unless the federal Food and Drug Administration ruled otherwise. In that case, South Dakota would have had to comply with federal law.

The question whether to schedule CBD oil has come up already this legislative session. In its original form, Senate Bill 22, a regular bill to reschedule controlled substances in compliance with the federal government, would have scheduled all CBD oil -- hemp- or cannabis-derived -- as a controlled substance.

Between the 2018 Farm Bill's legalization of hemp and hemp-derived CBD oil and public testimony on the bill, the Senate Health and Human Services committee ultimately decided to only schedule cannabis-derived CBD oil Epidiolex, a prescription drug used to treat seizures. By not scheduling all CBD oil, SB 22 didn't necessarily legalize hemp-derived CBD oil, since hemp is still illegal in the state. But it does allow for CBD oil to be legal should HB 1191 pass.

Noem signed SB 22 on Feb. 19.

Noem's administration had pushed against HB 1191 since it cleared its first legislative hurdle, unanimously passing the House Agriculture and Natural Resources committee on Feb. 7. Since then, the bill in its original form overwhelmingly passed the House by a 65-2 vote on Feb. 11, and an amended version passed the Senate on March 6 by 21-14.

Lesmeister said after the House's Monday vote that a veto of HB 1191 would put South Dakota at a "huge disadvantage." Businesses which have said they're interested in processing the crop in South Dakota will just go elsewhere to do it if the state waits too long, he said.

According to the National Conference of State Legislatures, at least 41 states have hemp programs already in place. Lesmeister said more are currently debating legalization.

"If this gets vetoed and it doesn’t pass, I think by May, June, you'll see that South Dakota is probably going to be the only state in the United States without a hemp program," he said. "We’ll be a huge disadvantage."

In her veto, Noem said hemp legalization "was never ripe for discussion during this legislative session."

"South Dakota must stand as an example for the rest of the country, not simply go along with others," she said. "Our state is not yet ready for industrial hemp."

House Speaker Lee Qualm, R-Platte, previously signaled that he would attempt to override a veto. The House could have the votes -- a two-thirds majority -- to do so. Unless three senators have a change of heart, the Senate does not.