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South Dakota lawmakers send some medical marijuana rules back to drawing board

The Department of Health prepared over 120 pages of rules on the state's brand-new medical cannabis program. While the rules were overwhelmingly adopted, a handful were returned by an interim rules committee — including the addition of glaucoma to a list of debilitating medical conditions under which someone can apply for eligibility.

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Medical marijuana being grown in Warren, Mich. William Archie / Detroit Free Press / TNS

PIERRE, S.D. — The committee charged with approving regulatory rules sent the South Dakota Department of Health back to the drawing board on several provisions of proposed rules for the state's new medical marijuana program.

While much of the rules package authored earlier this year by DOH and re-released this month after public feedback, including fees to run a dispensary to possession limits, was largely supported by stakeholders and legislators, the interim rules committee reverted a handful of provisions, including a requirement that doctors certify home-cultivators and a rule adding glaucoma to a list of eligibility conferring debilitating medical conditions.

The rules review committee also kicked back to DOH a requirement that would've required marijuana products be entirely packaged for commercial sale when it leaves the grow facility — effectively ending the possibility of bulk shipment. That drew criticism from the cannabis industry, with lobbyist Jeremiah Murphy arguing the ban would cut out the "little guy," or potential business owners who wanted to grow medical cannabis and ship to a separate facility or business to be packaged and then sold to a retail center.

Sen. Timothy Johns , R-Lead, agreed, noting the rule would fall foul of the "general practice of all commercial enterprise of this nature that you would ship in bulk and then could be packaged at the dispensary."

Opponents to the revised rules package stood up, from optometrists opposed to DOH's addition of glaucoma to the list of debilitating medical conditions that presage eligibility for a marijuana card applicant to the state's broadcasters association, which opposed effective bans on radio and TV advertisements for medical marijuana products.

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"It's unconstitutional," said Steve Willard, representing the South Dakota Broadcasters Association. Willard said banning advertisements on radio and TV would simply allow all advertising dollars to go to out-of-state social media giants.

The committee voted to revert the advertising rule, as well as a separate rule requiring that persons wishing to cultivate home-grow must receive written certification from a doctor — which had been opposed by two groups of medical professionals.

"I'm falling on the side of concluding that it's really not the intent of the law," said Rep. Jon Hansen , R-Dell Rapids.

The rules package sets up the basic requirements of the state's medical marijuana program, including who qualifies as a "practitioner" to certify cardholders and who can count as a caretaker to provide medical marijuana to a minor.

The state's program legally became effective on July 1, though no South Dakota-grown marijuana is expected to be sold in dispensaries in the state until next summer. The sole exception is the dispensary selling greenhouse-grown products owned by the Flandreau Santee Sioux Tribe, who began operating a dispensary on the reservation north of Sioux Falls in July on tribal land, which is not subject to South Dakota law.

Seth Pearman, the tribe's attorney general, told the committee that they'd sold to 7,000 customers so far who'd received cards through the tribe's rules but that the state left the tribe out of the rules-making process.

In a separate motion, Sen. Troy Heinert , D-Mission, sought to require DOH to write separate rules to align the tribal-and-state programs. But it was narrowly defeated.

Committee Chair Sen. Jean Hunhoff , R-Yankton said time was of the essence in setting up the rules by a statute-determined deadline later this fall.

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"We need to get our own shop in place," said Hunhoff.

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