A bill amended to give the state Legislature another year to implement a medical marijuana program in South Dakota passed the House State Affairs committee Wednesday.
House Bill 1100, introduced by Speaker Spencer Gosch, R-Glenham, was intended to be hoghoused, or amended into an entirely new bill, to “establish criteria regarding marijuana.” The bill was originally to be used to create provisions for recreational marijuana, but the overturning of Amendment A in circuit court shifted the Legislature’s focus to Initiated Measure 26, which legalized medicinal marijuana.
Voters overwhelmingly approved the measure in November, with more than 70% — or 291,754 South Dakotans — agreeing to legalize marijuana for medical use. If HB 1100 does not pass, medicinal marijuana will be legal on July 1.
Gov. Kristi Noem has voiced her support of pushing back the implementation, saying that the Legislature and the State Health Department need more time to make sure that the program is “done right.”
“We are working diligently to get IM 26 implemented safely and correctly. The feasibility of getting this program up and running well will take additional time. I am thankful to our legislative leaders for helping make sure that we do this right,” Noem said in a press release.
Secretary of Health Kim Malsam-Rysdon testified in favor of pushing back implementation, saying the Health Department needs the benefit of time "to really consider some of the more health-related aspects of this type of program. Her specific concerns: the criteria for qualifying patients, access, testing requirements and safety, product availability and approval ,and resources to implement.
“We do need additional resources to administer this bill. That, too, will help us in the coming year to really get this program right and to get stakeholder input, and that’s going to pay dividends down the road,” Malsam-Rysdon said.
There is another bill in the Senate intended to appropriate money to the DOH for implementation costs. But monetary resources are not the only things the health department needs.
“The ability for things to happen within state agencies comes with a need for resources. I think everybody here is aware we’ve been very engaged in responding to COVID-19, the pandemic of our lifetime,” Malsam-Rysdon said.
She told the committee that 85% of the department’s time is spent on responding to COVID-19 and vaccination efforts.
Secretary of Public Safety Craig Price also testified in favor, saying legalization opens up many questions for law enforcement concerning traffic stops and would also change how drug addiction programs are run.
Secretary of Education Tiffany Sanderson testified in favor because of IM 26’s implications for South Dakota schools. IM 26 allows children to consume marijuana products and has provisions stating those children should be allowed to get their medicine on school grounds. Sanderson said the education system needs to come up with policies around staff and student use on school property as well as have conversations about appropriate places for a dispensary.
The committee had to take a recess and came back later Wednesday afternoon to hear opposing testimony. Many patients testified that they need medical marijuana to function normally, with some getting emotional.
Rebecca Turk, a lobbyist for Dakota Rural Action from Rapid City, told committee members about her niece, who was born with chronic health issues and for whom medical marijuana was the only relief from seizures and constant pain. Turk told them through tears how, after her niece was not able to obtain it legally or consistently, she took her own life several years ago.
“It gave her relief that nothing else was giving her,” Turk said. “Delaying implementation of IM 26 costs lives. I can see that members of the committee value life, and like so many others have mentioned, this medicine saves lives.”
Tim Hughes, a disabled veteran, recounted his experience with opioid abuse following a series of knee replacements and how switching to cannabis changed his life.
“When I moved to Oregon, I had a therapist tell me to try medical cannabis because it was legal there, and the years that I lived there, I got off everything. I got off my painkillers, I got off my antidepressants, I was getting out of the house. It changed for me,” Hughes said. “But this medical marijuana program is important to a lot of people. To delay it and try to tear it apart, I don’t think is the right answer now. I don’t like feeling like I’m a criminal because I want to feel better...I don’t find that fair at all.”
Malsam-Rysdon said the department fully intends to implement a program and is not trying to subvert the will of the people. She said the rule-making process takes months and there are many questions raised in the measure that need to be clarified.
“We know how important this is to people...but what remains are some very legitimate questions about how this would actually work that we need time to work on,” Malsam-Rysdon said. “Going into this, we recognized that there was going to be a need to get to the details that make it a program run successfully. Because what I don’t want as your Secretary of Health, is to run through a program, go with what we’ve got right now without considering some of these very crucial questions and having a program that fails the people...they need a program that works for them.”
Representatives on the committee tried to make it clear that they were not trying to be uncaring in their intention to delay implementation. Rep. Tim Goodwin, R-Rapid City, asked if there were any products on the market that are similar to the effects of medical marijuana.
There are several pharmaceutical products that have elements of cannabis in them, but Melissa Mentele, executive director of New Approach South Dakota and an author of IM 26, said providers do not often prescribe them and if they do, the medicines are expensive — around $8,000 for Marinol, a cannabinoid used to treat severe nausea — and often not covered by insurance. Additionally, cannabis has an 80% effectiveness rate, while other synthetic drugs are around 40% effective.
Mentele said that IM 26 proponents did not expect implementation to begin in July, but rather in October per the measure, and maintained that the program could be implemented without an additional year.
“Patients don’t have time,” Mentele said. “Patients can’t wait another 20 months... We’ve lost 12 patients since we started this journey [to legalization]. And you’re asking us to tell patients — I have to go back and face these people and tell them, ‘I’m sorry, they’re not going to do it, they’re going to make you wait more’...People are not here today to testify because they’re so sick from waiting — we can’t make them wait anymore.”
Mentele said that the most important stakeholders — medical marijuana patients — have not been consulted throughout the amendment process. She said the state has not reached out to patients and that she and others have been cut out of the conversation, leading them to believe the Legislature is going to implement something other than what voters approved in November.
She suggested the DOH hire more staff to help implementation go faster, which Malsam-Rysdon countered wouldn’t solve the whole problem as it still takes time to find, hire, and train staff to implement an entirely new program.
“I appreciate the frustration, but the processes themselves take time,” she said.
Gosch moved to pass the bill as amended, which was seconded by Assistant Majority Leader Rep. Chris Johnson, R-Rapid City.
“It’s not like we aren’t sensitive to the issues that were discussed here today, and it’s not that we’re not sensitive to what our voters have accomplished. I do take slight offense to things that have been said that we don’t care,” Gosch said. “I think it’s crucial we get this program going, and I think it’s crucial that we do do it right, and that we get it for all the people who have expressed her today…ultimately, we do have a Department of Health that is under an unprecedented time.”
House Minority Leader Rep. Jamie Smith, D-Sioux Falls, and Rep. Oren Lesmeister, D-Parade, said they would be voting against the bill.
“There’s fear amongst the people that their vote somehow doesn’t matter. That we’re going to again say, ‘Just trust us, we’re going to get it right.’ I pray that we do get it right,” Smith said. “But there are people that need this help right now. I would feel a lot better about extending this if we did something to decriminalize marijuana or the usage for medicinal use for the people who need the medicine now. Instead we have people that are scared, people in pain, and people who don’t want to be criminals.”
“I understand there’s a pandemic, but who knows when it’s gonna end? This thing could drag on for another two years. With that being said, I just don’t understand why we can’t get this done by October,” Lesmeister said. “I think we’re undercutting the ability of our staff in South Dakota to be able to do this in every department...I think they could get this right.”
Johnson said he was sympathetic for the patients, but “if everything is a priority, then nothing is.”
“Please don’t think that each of us is heartless, that we check our hearts at the door, and that we take these decisions lightly, because we don’t. I want to do this the right way; I want people to have a way to ease their pain and I want it as soon as possible, but I do not want a system that we’re going to look back on and say, we wish we would have taken a little more time to do this right,” Johnson said.
Ultimately, the bill passed onto the House floor, with only three representatives voting no: Smith, Lesmeister, and Rep. Arch Beal, R-Sioux Falls.
Mentele was disappointed by the outcome. She said a better compromise would have been to decriminalize marijuana in the meantime while legislators and the DOH promulgate rules.
“If we need time, let’s split up the implementation. July 1st of this year, all the patient protections go into place, it’s decriminalized, and then they can take the time they need to implement the statewide rules,” Mentele told the Capital Journal.
She said she hopes the bill fails on the House floor and that the Legislature can find another solution to more quickly implement a medical marijuana program in South Dakota.
“They talked about how we have all of this COVID money and that’s what’s taking up so much time during session is how to spend this money. Well, here’s a really great way to spend money to implement a law that protects patients and improves quality of life and takes the challenge out for them. One thing off their plate,” Mentele said.