South Dakota Cannabis Laws

Is Cannabis Legal In South Dakota?
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StateRecreationalMedical MarijuanaCBD
South DakotaIt’s complicatedYesYes

Federal Law:

Recreational Medical MarijuanaCBD

Is recreational cannabis legal in South Dakota?

Maybe? Recreational adult-use of cannabis should become legal in the state by July 2021, but the current status of the bill is uncertain

South Dakota was previously seen as one of the most conservative states for cannabis, with the strictest possession laws in America. That’s why it was surprising when the state became the first in the nation to legalize recreational and medical marijuana in the same year. During the 2020 election, South Dakota voters passed both the Marijuana Legalization Initiative for recreational cannabis and Measure 26 to legalize medical marijuana. 

When the recreational initiative was first passed in November 2020, the bill stated that adults 21 years and older would possess up to 1 oz of flower and no more than 8 grams of concentrate. Qualifying adults would also grow up to three plants if there are no licensed retailers in their area. The proposed tax rate for recreational cannabis of 15% would be allocated to help fund public schools. 

Unfortunately, as of February 2021, the fate of recreational cannabis is starting to look bleak when a circuit judge ruled the voter-approved measure to be unconstitutional because it deals with more than one subject. Supporters defending legalization expect the issue to be appealed to South Dakota’s Supreme Court, and despite the setback, are moving forward with legislative efforts. 

Is Medical Marijuana legal in South Dakota?

Yes. Full strength medical marijuana will legal in South Dakota by July 2021. Lawmakers have assured potential medical marijuana patients that regardless of what happens in the courts pertaining to the recreational bill, and the governor’s attempt to delay implementation, patients will start applying for treatment by July. 

Under Measure 26, patients may qualify for medical marijuana treatment if they suffer from: chronic disease, seizures, muscle spasms, multiple sclerosis; and any resident of this state may petition the department to add a severe medical condition or treatment to the list of debilitating medical conditions as defined by this Act.  Patients who qualify may possess up to 3 oz of products from state-licensed dispensaries and up to 3 plants, but specifics have yet to be determined. 

Are CBD products legal in South Dakota? 

Yes. Despite the passage of the Hemp Farming Act of 2018, hemp-derived CBD products that are legal under federal law in the United States; (as long as they contain at most 0.3% THC) remained prohibited in the state until 2019. Last year, South Dakota’s Gov. Noem signed HB 1008 to set up an industrial hemp program, legalizing hemp cultivation and CBD products. 

Any and all CBD in food and drink is still federally illegal.

What’s South Dakota’s cannabis sales tax? 

4.5% is the sales tax on all retail items, including cannabis (if the recreational bill is once again deemed constitutional)

What’s South Dakota’s medical marijuana sales tax? 

0%. Medical Marijuana products will not have sales tax. 

Are there any other South Dakota cannabis tax rates?

Yes, if legalized the state excise tax on recreational retail sales would be 15%. There may also be varying city and county sales taxes included with each sale. 

South Dakota’s Cannabis Timeline:

1931: South Dakota bans cannabis

1937: The Marihuana (archaic spelling of Marijuana) Tax Act was enacted banning cannabis at the federal level. Medical Marijuana use was still permitted.

1951: The Boggs Act, Sponsored by Hale Boggs and signed into law under President Harry S. Truman, set mandatory sentencing and increased punishment for cannabis possession. 

1969: The Marihuana Tax Act is deemed unconstitutional in the landmark Leary v. United States. Timothy Leary, a professor, and activist, was arrested for the possession of marijuana in violation of the 1937 Marihuana Tax Act. Leary then challenged the act because the act required self-incrimination, which violated his Fifth Amendment rights. (The self-incrimination clause provides various protections against self-incrimination, including the right of an individual to not serve as a witness in a criminal case in which they are the defendant, better known as “Pleading the Fifth.”) The court penned the unanimous opinion by Justice John Marshall Harlan II and declared the Marihuana Tax Act unconstitutional. Therefore, Leary’s conviction was overturned.

1970: The Controlled Substances Act is enacted (replacing the unconstitutional Marihuana Tax Act). Cannabis is classified as a Schedule I drug, determined to have a high potential for abuse and no accepted medical use, thereby prohibiting its use for any purpose. This act was signed into law by President Richard Nixon. 

This legislation created five classifications, with specific qualifications for a substance to be included in each. The substances scheduling (classification) are determined by the Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA). Yet, Congress does have the power to schedule or de-schedule substances through legislation. Substance scheduling decisions based on its potential for abuse accepted medical use in treatment in the United States and international treaties.

Classification of Controlled Substances:

Schedule I: High potential of abuse, not acceptable for medical use

Schedule II: High potential of abuse, sometimes allowed with “severe restrictions” for medical use

Schedule II: Medium potential of abuse, acceptable for medical use

Schedule IV: Moderate potential of abuse, acceptable for medical use

Schedule V: Lowest potential of abuse, acceptable for medical use

1977: South Dakota decriminalizes cannabis and then re-criminalizes almost immediately. 

1984-1986: Mandatory Sentencing and the three-strikes law were created under the Reagan Administration. This accounts for some of the harshest drug laws designed, including mandatory 25-year imprisonment for certain drug offenses and the death penalty’s promotion to be used against “drug kingpins.”

1998: House Joint Resolution 117, encouraged by the passing of California’s Prop 215, the House of Representatives passed this measure to support the existing Federal legal process for determining the safety and efficacy of certain drugs.  

2014: The Rohrabacher–Farr Amendment passed in the U.S. House and signed into law prohibiting the Justice Department from interfering with the implementation of state medical cannabis laws.

2017: South Dakota’s medical marijuana ballot initiative fails to receive enough signatures

2018: Farm bill legalizes low-THC hemp nationwide and effectively de-schedules hemp-derived cannabidiol (CBD) from the Controlled Substances Act. 

2019: South Dakota’s Gov. Noem signed HB 1008 to set up an industrial hemp program, legalizing CBD. 

2020: For the first time in the nation, both medical marijuana and recreational cannabis in South Dakota are legalized via voter ballot initiatives.

2021: South Dakota’s Recreational Bill was struck down and deemed unconstitutional by a circuit judge.

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