The South Dakota Medicinal Marijuana Oversight Committee passed a slew of motions at its latest meeting amid tension during this and past meetings.
Tensions Grow at Nov. 05 Meeting
Members from the medical cannabis industry asked for legislators to dissolve the oversight committee entirely.
Mitch Richter represents Genesis Farms and voiced his disapproval of the committee during public comment.
“Repeal the legislation that forms this committee because we have plenty of opportunity to interact with the Legislature, with the Department of Health that’s very well run, with the stakeholder committees that they run,” Richter said. “We’d be happy to not have to come to Pierre and go through what we’ve gone through today.”
However, legislators disagreed saying the committee can have some benefit. Sen. Lauren Nelson said the committee created conversations she doesn’t think would have otherwise happened.
“I see some of these motions as being beneficial to the industry. One thing I want to say about the oversight committee is because I’m on this committee, I had a business owner contact me about the fines,” Nelson said. “And we’ve had that discussion. And so, being the first time on this, I do see benefit from this committee in the fact that there was an issue that came forward, and we’ll be able to talk about that. And we have a motion to look into that some more.”
Public testifiers pointed to other issues as well. Richter pointed to the absent seats on the committee.
“Again, you passed a bunch of motions today,” Richter said. “35% of this committee isn’t here today. They didn’t vote. That’s an issue.”
Sen. John Carley said he “respects that comment.”
“We should have members that attempt to be here. I agree with that comment,” Carley said. “I will point out that sometimes people have things in life. For example, we had a sheriff on our committee, second sheriff on our committee, and today he was involved in a shooting in Sioux Falls so he couldn’t make it. So, there are valid reasons that sometimes people can’t make it.”
Medical Marijuana Inspection Fine Structures
One of the many motions passed looked at an issue some medical cannabis facilities say is hurting their ability to exist.
A major discussion point the committee addressed was fining on medical cannabis establishments up to $10,000 if they aren’t compliant upon inspection.
Sen. Lauren Nelson is on the committee. She said whether you agree or disagree with medical marijuana, it’s here.
“And these people are running a business,” Nelson said. “And when you look at a small business within my district that is trying to just do their thing, trying to run a business successfully, especially being a small business, having fines this large is a huge bite to being able to just survive.”
She said for some businesses, getting a $10,000 fine when operating on smaller margins leaves a huge impact. She said if these places close, that inhibits medical access to people in those communities.
The committee determined a large part of the issue is inconsistency. Nelson agreed.
“Consistency, as being a teacher at one point, I mean that’s one thing that I made sure I did in my classroom is be consistent and treat everybody fairly so that kids know what to expect,” Nelson said. “And I’m not seeing that, or at least from the people that I talk with is they don’t know what to expect. They don’t know what to do. And especially with fines this large, it needs to be there. It needs to be there because one wrong step and here you’re sitting there with $3,000, $5,000 worth of fines.”
Melissa Magstadt is the Secretary of the Department of Health. She said they’re fining establishments based on statute put in place by the state Legislature.
“But the only thing we could do if somebody remained out of non-compliance, so not just first time, but remained out of compliance was either to suspend a business or revoke a license,” Magstadt said. “Which is not, I mean you shouldn’t suspend somebody’s business because of a whatever type of thing. And so that’s why fines were put in place in the first place.”
Magstadt said a structure for fines is necessary, but she supports working together to improve both the process and state’s medicinal marijuana program as a whole.
The committee passed the motion to support collaboration with the DOH to ensure that fines for certified medical marijuana facilities for noncompliance are equitable. They passed a similar motion to encourage continuing discussion regarding consistency in inspectors for medicinal marijuana and fines.
Ban THC Products in Stores
The oversight committee also passed a motion to ban THC products in stores, and that they only be for licensed medical marijuana dispensaries. Sen. John Carley brought the motion, pointing to news of smoke shops and vape shops being prosecuted by Attorney General Marty Jackley.
“It does seem like those businesses are harming a lot of those that are in the medical marijuana industry, the dispensaries,” Carley said. “With that said, I think we’ve seen it completely unregulated. As I drive down the streets, I see the THC signs stuck out on the streets.”
Carley said that the medical marijuana dispensaries have treated it “more professionally,” adding that the smoke and vape shops are harming the industry. The motion passed unanimously among the seven committee members present. Four were excused.
Access for Law Enforcement
Committee members passed a motion to give law enforcement access to the prescription drug monitoring program — PDMP — or that medicinal marijuana card holders must produce a registry identification card to law enforcement when appropriate.
Committee Chair Rep. Josephine Garcia said it all plays into medicinal marijuana users “getting a bad rap” due to bad actors.
“Our bigger issue is we need to cut that open gate, and I get you need the information. But how do we know those people driving aren’t just hustling it, selling it. We have no idea, and then we speculate,” Garcia said. “So, this is why I could see the industry getting very angry because they do follow the rules. And if the patients do have the card, maybe there are a few people that don’t have the card, but then we have to look at digital on their phone, something accessible they should have.”
She called the system complex and not a black-and-white situation.
Secretary of Health Magstadt said giving law enforcement access to the list of medical marijuana patients does create some issues.
“Here’s my concern: Now we’re giving a list of folks who are not breaking the law, who are not necessarily driving impaired or behaving in whatever sort of manner that would have law enforcement, and yet they’re going to have 11,500 patients that has nothing to do with the case that they’re working for,” Magstadt said. “So, that would be a concern for me.”
Magstadt said a PDMP access or other list issues would have to be statutorily addressed by the Legislature to create a more timely manner the information can be relayed to law enforcement. She said one solution is creating digital cards, something the department is working towards. Digital cards give patients easy access to their card if law enforcement finds them with marijuana. She said that comes with a price tag, and funding is yet to come.
Improving Patient-Provider Relationship
The committee passed additional motions, including encouraging supporting legislation to increase the patient-provider relationship. The committee, including Rep. Bobbi Andera, said it creates more accountability between the two parties.
“Even though parts of me want to not support this motion, the medical side of me says it’s probably in everyone’s best interest to support it,” Andera said. “It is time for the state of South Dakota and all of the medical facilities to get on board with medical cannabis as a treatment.”
Additional Motions Debated
The committee passed additional motions:
- To cap the percentage of THC in medical marijuana products
- Expand membership of the committee to include a pharmacist
- Require marijuana education from the Department of Health for the public
- Create an additional committee to study the illegal sale and distribution of products containing THC at smoke or other shops
- Support legislation to provide telehealth services to patients of the medical marijuana program following the initial physical examination
- Mandatory reporting for the Department of Health on hospitalizations related to drugged-driving, and poison control related to marijuana, indicating when it’s medical marijuana
The oversight committee failed a motion to support legislation to revise the Marijuana Oversight Committee membership to include a representative of the medical marijuana industry.
Members opposed on the merits that a medical marijuana industry representative would have to recuse themself from much of the votes. The vote failed on a vote three in favor to four opposed, with four excused.
