"WHAT'S IN A NAME ANYWAY?": REEVALUATING SOUTH DAKOTA'S CANNABIS STATUTORY SCHEME.

• Author: Schlimgen, Eric

1. INTRODUCTION

   The marijuana and edibles consumed now are not the same products of the 1970s and neither are the gummy bears. (1) South Dakota's legislature has not attempted to remain contemporary with the developments of the cannabis industry; the current statutory language makes interpretation, prosecution, and defense of cannabis cases arduous. (2)

   The overall trend for the past several decades has been to breed marijuana with increasing amounts of THC. (3) In the 1970s, marijuana purchased "on the street" typically contained less than 1% THC; marijuana containing over 20% THC in medical dispensaries is now commonplace. (4) Additionally, the amount of THC in cannabis wax varies greatly; it has been estimated to contain as much as 90% THC. (5) Essentially, the "goods" (marijuana and THC derivatives) have changed, but the laws--at least in South Dakota--have not. (6)

   The recent South Dakota Supreme Court case State v. Schrempp (7) illuminates the ongoing difficulty defendants, prosecutors, and the judiciary face in classifying THC under the current statutory scheme. (8) In Schrempp, the defendant was indicted for eight drug-related offenses. (9) The day before trial, during a pretrial motions hearing, the State noted that it had corresponded with defense counsel about an amendment to the indictment. (10) The State, after obtaining test results from a chemist, wanted to amend counts three and seven to reference "Delta-9-Tetrahydrocannabinol" in place of "hashish." (11) The parties consented to the change, and the indictment was amended to replace "hashish" with "Delta-9-Tetrahydrocannabinol AKA Hashish." (12)

   The South Dakota Supreme Court relied on the testimony from the chemist and found that hashish or Delta-9-Tetrahydrocannabinol "are at least related substances." (13) Exercising prudence, the court was not concerned with the technicalities of "whether the drug in question is technically known as hashish or by its chemical compound Delta-9-Tetrahydrocannabinol," because "the name is not an essential element of the offenses as both are controlled Schedule I substances." (14) The cloudiness of classifying the substance, as noted in Schrempp, is only the most recent acknowledgement of the lack of clarity in South Dakota's disheveled cannabis statutory scheme. This lack of clarity in the statutes bolsters the underlying point, paraphrasing from Schrempp; the name of the substance is not essential. (15)

   Additionally, South Dakota circuit courts have applied the doctrine of in pari materia in recent cannabis cases, electing to view the South Dakota cannabis statutes collectively. (16) The shared holding of these circuit court decisions indicates that within the statutory scheme there are two marijuana statutes--one for "flowering" marijuana and one for marijuana outside the plant. (17) Within the definition of the marijuana statute for marijuana outside the plant, there is an exemption that has been held by the circuit court decisions to mean the THC outside the marijuana plant remains housed under the marijuana statute, as opposed to the tetrahydrocannabinol statute. (18) The consequence of housing THC in the marijuana statute, instead of under the tetrahydrocannabinol statute, is the difference between a misdemeanor or felony. (19)

   South Dakota Governor Dennis Daugaard has also approved a bill that removed cannabidiol ("CBD") from the definition of marijuana, making CBD oil a Schedule IV controlled substance. (20) Senate Bill 95 is significant as it notes a distinction of compounds within the cannabis plant. (21) Additionally, with the progress from pro-marijuana groups advocating for medical or recreational marijuana germinating in South Dakota, the time for legislative clarity in South Dakota's cannabis statutes is even more urgent. (22) The adoption of new cannabis statutes will "nip" the disparities of penalties under the current scheme and potential wave of increased cannabis complications from a ballot initiative-absent definitions--"in the bud." (23)

   This comment will first examine the emergence of new trends in the cannabis industry. (24) Next, this comment will provide an overview of the history of federal and South Dakota classification and regulation of cannabis generally. (25) It will then analyze South Dakota's statutes regulating cannabis (collectively, marijuana, tetrahydrocannabinol, and hashish). (26) Next, this comment assesses South Dakota Supreme Court and circuit court decisions involving cannabis. (27) Finally, this comment provides an overview of regulatory schemes implemented by other states. (28) This comment concludes by urging South Dakota to retire its current cannabis statutes and offers a suggestion for an update to the statutory framework governing cannabis. (29)

2. BACKGROUND

   Marijuana goes by many names, for a non-exhaustive example: pot, weed, ganja, Mary Jane, reefer, and devil's lettuce. (30) Whichever name given to marijuana is largely irrelevant--outside the statutory component of definitions. (31) What is important, however, is how cannabis has evolved in "flowering," edible, wax, and synthetic forms. To gain some sense of the scope of the industry of cannabis, it is noteworthy that "North American marijuana sales grew by an unprecedented 30% in 2016 to $6.7 billion as the legal market expand[ed] in the [United States] and Canada." (32) By 2021, sales in North America are predicted to reach $20.2 billion at a compound growth rate of 25%. (33) The marijuana industry has grown faster and larger "than even the dot-com era." (34)

   1. THE MANY FACES OF CANNABIS

      1. High Potency Marijuana

         The cannabis plant contains over seventy "phytocannabinoids." (35) The two most common psychoactive elements are Delta-9-Tetrahydrocannabinol ("THC") and cannabidiol ("CBD"). (36) THC and CBD work against each other: THC produces the "high" associated with marijuana, and CBD counteracts the high. (37) CBD also has other medicinal and neuroprotective properties. (38) The emerging trend is to cultivate marijuana with higher amounts of THC and lower amounts of CBD. (39) Whereas in the 1970s, marijuana contained less than 1% THC, by 2012, the THC level had risen to more than 12%. (40) THC levels are even as high as 20% in states that have legalized marijuana. (41) The level of THC depends on the species of plant, its anatomy, and strain (42)

      2. "Edibles"

         Smoking or chewing is no longer the only method of ingesting cannabis (43) Cannabis can be mixed into a variety of foods and drinks, including tinctures, chocolates, cereals, cooking oils, desserts, drinks, snack foods, spreads, candies, pills, and chewing gum (44) There are three categories that edibles fall into:

         (1) Edibles absorbed by the body through gastrointestinal uptake (digested through the stomach);

         (2) Edibles absorbed through saliva or oral uptake; and

         (3) Edibles that fit into a hybrid category and are absorbed both gastrointestinally and orally. (45)

         Because THC is absorbed through the stomach instead of the lungs, the "high" produced by eating edibles is different from the one produced by smoking marijuana. (46) The "high" is generally slower to arrive, lasts longer, and is often more intense because people will overeat marijuana edibles while waiting for the high to take effect. (47) On the other hand, people who smoke marijuana get high quicker; which allows them to better regulate their high. (48) Inconsistent THC potency in edibles is also a serious problem. (49) Potency errors in edibles make even responsible consumption challenging. (50) When there is substantially more THC in an edible than is labeled, overconsumption can occur even when the consumer follows directions carefully. (51)

      3. Cannabis "Wax"

         One method of extracting THC is referred to as "solvent extraction." (52) This process uses butane to produce a cannabis wax that is sticky, hard, and hyperconcentrated. (53) Cannabis wax is used when a small "dab" of it is heated and the vapors inhaled, giving this method the name "dabbing." (54)

         Amounts of THC in cannabis wax vary, but reports have revealed that THC levels can reach as high as 90% THC. (55) Even more conservative findings on THC concentrations in cannabis wax put the percentage at 20 to 25% THC. (56) Aside from burn injuries related to its production, use of cannabis wax is associated with a more intense high, as well as less common effects; such as passing out, rapid heartbeat, confusion, and psychosis. (57) Some have reported that cannabis wax may be associated with greater tolerance and withdrawal (two aspects of physiologic addiction) compared to smoking "regular" marijuana. (58)

      4. Synthetics

         Synthetic drugs are made-man chemical substances that are produced in laboratories and are designed to have the same molecular structure and effect of naturally occurring drugs, such as opium and cocaine. (59) Mefhamphetamine and ecstasy were among the first synthetic drugs made and were imported into the United States through black markets. (60) Synthetic drugs have been marketed as the "legal" alternative to illegal drugs, like cocaine, marijuana, and heroin, causing law enforcement to encounter new issues in the war on drugs. (61)

         Two categories of substances comprise the new breed of synthetic drugs: "(1) synthetic cannabinoids (commonly referred to as 'synthetic marijuana,' 'Spice,' or 'K2'); and (2) synthetic cathinones (commonly referred to as 'bath salts')." (62) This new era of synthetic drugs also includes substances such as "phenethylamines (e.g. the 2C compound series), piperazines, tryptamines, and arylcyclohexamines." (63) There is, however, an almost infinite amount of various chemical compositions that drugs could be made into. (64) New compositions of drugs can appear on the market quickly, making it hard for state governments to keep rapidly-changing products under control. (65) One researcher referred to the effort to prevent new substances from emerging, banning them, and immediately...