An effort to rein in so-called “pop up” medical cannabis clinics in South Dakota was rejected by the state’s lawmakers on Wednesday.

The Forum News Service reports that the state Senate Health and Human Services Committee voted against a pair of bills that would have “made myriad changes to cannabis law in the state: banning certain advertisements for prescription services; requiring certain actions by doctors and other providers to establish a ‘bona fide’ relationship and allowing prescription to occur only in certain facilities, most of them related to medical care in some manner.”

South Dakota voters approved a ballot measure in 2020 that legalized medical cannabis treatment for qualifying patients. 

The new law officially took effect in 2021, and the first state-sanctioned dispensaries opened to customers last year. 

Since then, a number of “pop up” clinics have opened, offering medical cannabis prescriptions to patients in mere minutes. 

Supporters of the two measures rejected by the state Senate committee on Wednesday contend that those clinics are “allowing those seeking medicinal cannabis to earn their cards without the proper, professional examination inherent to the law,” according to the Forum News Service.

Both bills failed by “wide margins,” the Forum News Service reported, noting that opponents to the measures “said the increased oversight and potential punishments would have the consequence of hurting the rate of providers opting into the medical marijuana program, an already present difficulty in the nascent program that creates a hole filled by ‘pop-up’ clinics.”

“The program is brand new, and we don’t want to go backward with law by just saying, ‘We’ve got to stop this right now,” said state Sen. Erin Tobin, of Winner, as quoted by the Forum News Service. “Because I know it’s a problem. We’ll get there.”

But the chief supporter of the proposals said that the pop-up clinics “blur the line” between medical and recreational pot. 

A measure to legalize recreational cannabis was rejected by South Dakota voters last year.

“The voters said yes to establishing a medical marijuana system, and they said no to establishing a recreational marijuana system,” said state House Rep. Fred Deutsch, the supporter of the bills.

The Mount Rushmore State has had a complicated history with cannabis policy as of late. Despite rejecting last year’s recreational pot proposal, South Dakota voters had approved an amendment to end the prohibition on pot in 2020. 

But that amendment faced an immediate legal challenge led by the state’s Republican governor, Kristi Noem, and was ultimately struck down by the South Dakota Supreme Court in 2021. 

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,” Noem said at the time of the court’s ruling. “We do things right—and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans.”

The state Senate voted last month to broaden the list of qualifying conditions for medical cannabis treatment.

Under the original statute, patients with the following would qualify for the treatment: A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms.

The measure passed last month would expand the list to include: Acquired immune deficiency syndrome or positive status for human immunodeficiency virus; Amyotrophic lateral sclerosis; Multiple sclerosis; Cancer or its treatment, if associated with Crohn’s disease; Epilepsy and seizures; Glaucoma; or Post-traumatic stress disorder.

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South Dakota only has one medical cannabis dispensary. To make matters worse, some customers there are still getting busted for pot.

That is according to the Argus Leader, which reported last week that “officials with the Flandreau Santee Sioux Tribe said that more than 100 people who’ve been issued tribal medical marijuana identification cards have been arrested since the tribe opened South Dakota’s first-ever cannabis store last year.”

The tribe opened the dispensary on July 1, 2021, when the new law officially took effect. No other dispensaries opened on that official start date, however, creating a gray area between the state and tribe.

South Dakota Gov. Kristi Noem and her administration has said that the state would not recognize medical cannabis cards issued to individuals who are not members of the tribe.

According to the Argus Leader, “the Flandreau Santee Sioux Tribe has issued about 8,000 medical marijuana cards to tribal and non-tribal members,” and “although several county- and city-level law enforcement agencies and state’s attorneys have eased up on arrests and prosecutions for possession of small amounts of marijuana all together, others, like the Flandreau Police Department are not honoring some tribal-issued medical cards.”

“They’re taking the cards and handing out fines,” Tony Reider, chairman of the Flandreau Santee Sioux Tribe, told the newspaper. “But most we don’t know about, because most people are just paying the fines.”

The continued arrests typify what has been a fraught 15 months since South Dakota voters passed a pair of measures in the 2020 election to dramatically reform the state’s marijuana laws.

Voters there approved both a constitutional amendment to legalize recreational pot, as well as an initiated measure to allow medicinal cannabis.

But only the medical law still stands, with the South Dakota Supreme Court ruling in November that the recreational amendment was unconstitutional, as it violated the state’s “one subject” requirement for constitutional amendments.

Chief Justice Steven Jensen ruled that Amendment A featured “provisions embracing at least three separate subjects, each with distinct objects or purposes,” noting that the state constitution “not only includes a single subject requirement but also directs proponents of a constitutional amendment to prepare an amendment so that the different subjects can be voted on separately.”

The decision upheld a lower court’s ruling from earlier in the year, which came after Noem and a pair of law enforcement officials challenged the amendment.

After the state Supreme Court’s ruling on the day before Thanksgiving, Noem struck a celebratory note.

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,” she said in a statement at the time. “We do things right—and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans.”

The Argus Leader reported that South Dakota taxpayers will be footing the $142,000 in legal costs associated with Noem’s recreational pot challenge –– an expense that the governor believes should be shouldered by the advocates behind the amendment.

For Noem, a potential 2024 Republican presidential candidate, the cannabis dispute has represented a rare political misstep. A poll last year found that only 39 percent of South Dakota voters approve of her handling of the recreational pot matter, while 17.8 percent said they somewhat disapprove and 33.4 percent said they strongly disapprove.

Those numbers stand in sharp contrast to her overall approval rating of 61 percent.

The medical cannabis program, meanwhile, has slowly taken shape. Enrollment for eligible patients began in November, while state-recognized dispensaries may open later this year.

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For the most part, South Dakota voters are on board with their governor. Large majorities approve of her overall job performance, as well as her handling of the state’s economy and approach to the COVID-19 pandemic. 

But when it comes to Kristi Noem’s handling of cannabis legalization in the state, the Mount Rushmore State’s first-term governor and potential Republican presidential candidate gets a thumbs down.

A new poll out last week found that pot prohibition is just about the only bad grade on Noem’s report card. Of the 500 registered South Dakotan voters who participated in the poll, 61.2 percent shared they approved of Noem’s overall performance as governor.

Specifically, about 65 percent said they also approve of her handling of the pandemic, which has been defined by a hands-off approach. Seventy-two percent said they approve of her focus on problems specific to South Dakota, while roughly 61 percent back her upholding of the integrity of the office.

But on her handling of cannabis legalization, which flamed out in the state’s court system after being approved by voters in last year’s election, only 39 percent said they approve of Noem, while 17.8 percent said they somewhat disapprove and 33.4 percent said they strongly disapprove. 

The poll was conducted by Mason Dixon (and reported on by local television station KELO) between October 20 and 23 using phone interviews with 500 registered South Dakota voters. It has a margin of error of 4.5 percent.

The findings from the survey would seem to confirm what the results of last year’s election showed: that South Dakotans are ready to legalize recreational pot use for adults. Fifty-four percent of voters in the deep red state approved of Amendment A, which would have legalized pot for adults aged 21 and older. 

The poll also suggests that Noem’s unflinching opposition to legalization has been a rare political misstep for an otherwise popular governor widely believed to have White House aspirations. 

Noem effectively challenged the constitutionality of Amendment A, with a pair of state law enforcement officials bringing a lawsuit on her behalf. A circuit court judge in South Dakota struck down the amendment in February, but in April, the state Supreme Court agreed to consider an appeal of the lower court’s decision.

After deliberating for seven months, the Supreme Court finally handed down its decision last month, ruling on the eve of Thanksgiving that Amendment A violated the “one subject” requirement in the state’s constitution. 

Chief Justice Steven Jensen wrote in his majority opinion that the proposed amendment contained “provisions embracing at least three separate subjects, each with distinct objects or purposes.”

“This constitutional directive could not be expressed more clearly—each subject must be voted on separately—and simply severing certain provisions may or may not reflect the actual will of the voters,” Jensen wrote. “Therefore, we cannot accept Proponents’ suggestion that excising the medical marijuana and hemp provisions from Amendment A in favor of retaining the provisions regulating and legalizing recreational marijuana is an appropriate remedy. Amendment A is void in its entirety.”

Noem celebrated the Supreme Court’s decision, while also affirming that the state’s rollout of a new medicinal cannabis program—which was also approved by South Dakota voters in last year’s election—remained a go. 

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,”she said in a statement at the time. “We do things right—and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans.” 

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Re-criminalization wouldn’t have happened without Gov. Kristi Noem’s leadership.

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