PIERRE, S.D. (KELO) — A state legislator from Minnehaha County has introduced a bill which, if passed, would prohibit the sale of all Delta-8, Delta-10, THC-O, HHC and THC-P products, as well as certain other unregulated THC products in South Dakota.
This bill, HB1125, brought by Republican Rep. Brian Mulder, is entitled ‘an act to prohibit the chemical modification or conversion of industrial hemp and the sale or distribution of chemically modified or converted industrial hemp and to provide a penalty therefor.’
Mulder explained the reasoning behind his bill.
“It was in August 2022 — [someone] put an inquiry into the DEA about how we should handle these Delta-8, Delta-9, THC-O; these synthesized or chemically derived products from a hemp plant,” said Mulder. “They essentially came out and said — that Delta-8 and Delta-9 THC-Os should be considered controlled substances.”
While he says he does not want to hamper the hemp industry in South Dakota, Mulders says that the products he’s concerned with are not naturally derived hemp products.
Mulder’s bill modifies existing law, with the first addition coming with the introduction of the term “chemically derived cannabinoid” in Section 1, which is then defined as a chemical substance created by a chemical reaction which changes the molecular structure of any chemical substance derived from the cannabis plant.
This new term, it is noted, does not include cannabinoids produced by decarboxylation, which is the loss of carbon dioxide from a molecule so long as the decarboxylation occurs naturally and not by way of a chemical catalyst.
This definition of chemically derived came after various conversations with state agencies including the Department of Ag and Natural Resources and Department of Health, says Mulder, noting that he also drew language from existing law in North Dakota.
“When we say chemically derived, we’re saying that Delta-8, if you do your research, is really just found in trace amounts in the hemp plant along with Delta-10,” Mulder explained. “To get to where these products are now — they’re changing the molecular makeup. This is not the product they say it is.”
The crux of the issue with Delta-8 and other such cannabis products made legal (or perhaps made, technically not illegal) by the 2018 Farm Bill is the lack of regulation in the market.
“The FDA’s not involved in any of the Delta-8/Delta-9 products, so we don’t even know what’s in them,” explained Mulder. “That’s the issue, we do not know what’s in the products.”
While substances such as Delta-8, Delta-10 and other technically-not-marijuana cannabis products are generally considered as safe to use as traditional marijuana, this lack of testing requirements for these products, which can often be bought by anyone over the age of 21 in places such as smoke shops, vape stores or even gas stations.
These products are not regulated by the state in the same way that marijuana products are, which must undergo testing to verify potency and check for things such as molds, pesticides and heavy metals, all of which can be toxic.
“The fact that we don’t know what’s in them, the FDA isn’t even looking at them, they’re consumable or inhaled products and the DEA’s saying they’re controlled substances — that’s enough to say that’s probably something we don’t in an over-the-counter retail sale setting,” remarked Mulder.
By and large, it would appear that the South Dakota cannabis industry is in agreement with Mulder, who says that in informal conversations he’s had with industry members, they haven’t disagreed with his concerns.
HB1125 has yet to be heard by a committee, but has been referred to the House Health and Human Services Committee, which Mulder serves on. A date for its first hearing has not been set.