SIOUX FALLS, S.D. — The Upper Midwest is having quite a conversation about marijuana right now.
A NewsMD analysis finds marijuana laws are in a state of flux in South Dakota, North Dakota and Minnesota. All three states have approved medical marijuana programs. And each state is grappling with proposals that will make recreational marijuana legal, in line with a national sea change of opinion on the drug.
While marijuana remains illegal under federal law, there has been a rapid shift in how states view marijuana in the past 25 years. That shift has only accelerated over the last decade as state after state decriminalize marijuana, allow its medicinal use or fully legalize it including for recreational use.
- Marijuana is now fully illegal and un-decriminalized in only six states: Idaho, Wyoming, Kansas, Tennessee, Alabama and South Carolina, according to DISA Global Solutions, an employee drug testing company that closely tracks state drug laws.
- 35 states -- including Minnesota, North Dakota and recently South Dakota -- have some form of medical marijuana program. The number of states rises to 42 if you include those that allow medicinal use of CBD oil.
- 30 states have decriminalized marijuana.
- 16 states -- including, recently, South Dakota -- and the District of Columbia have fully legalized marijuana.
The shift in state laws mirrors a broad shift in public opinion. While only 25% of Americans wanted marijuana legalized in 1995, according to pollster Gallup, its late 2020 poll showed that now, 68% of Americans do. It's an all-time high for legalization support and double the support percentage in 2003.
Four states had 2020 ballot proposals to legalize recreational marijuana, and in all four states, including South Dakota, voters approved the measures.
Minnesota doesn't have a ballot initiative process, but if it did, state voters would have legalized marijuana by now, said Jason Tarasek, a pro-cannabis lobbyist and attorney who founded the Minnesota Cannabis Law firm.
"What’s interesting is, if you put the vote to the people almost anywhere, people are going to choose legalization," he said.
Why the big shift?
Multiple cannabis advocates who spoke to NewsMD identified a generational pivot in support for marijuana, both for medicinal and recreational use, with support among Generation X and Millennials, roughly adults age 40-50 and younger, displacing the disapproval of the Boomer generation.
There is a growing acknowledgment that the one-time "War on Drugs" campaign disproportionately targeted communities of color, criminalizing many for the sale and possession of marijuana that has been decriminalized or legalized in many states.
Also contributing, advocates say: the death of once-common tropes about the societal and criminal dangers of marijuana, as evidenced in the film "Reefer Madness." The film was presented as a cautionary tale in the '30s-'40s before later gaining generational derision for its over-the-top portrayals. of marijuana use and its effects.
As more states have legalized marijuana, advocates say, those opposed to the drug visit those states and don't see the societal collapse and violent criminal acts of which they were warned.
“I think there’s been a shift from people that maybe weren’t sure about it, or were really nervous about it happening, to actually visiting some of these other states and realizing it’s not really as big a deal as they were led to believe," said Ned Horsted, executive director of the newly formed Cannabis Industry Association of South Dakota.
Here's where marijuana laws stand in Minnesota, North Dakota and Minnesota:
Minnesota approved a medical marijuana program in 2014, and distribution to patients began in July 2015.
It had just over 18,000 program participants registered as of December 2019 and the range of qualifying conditions has expanded over the years.
The No. 1 qualifying condition, intractable pain, was the certified justification for just over half of all program participants as of December 2020.
Minnesota's medical marijuana program restricts the state two two manufacturing facilities: Vireo Health of Minnesota and LeafLine Labs. It also requires the marijuana sold through the program to be further processed into pills or oils -- not offered as raw buds marijuana plants.
The processed product is more expensive, said Tarasek, the pro-cannabis lobbyist and attorney. Since marijuana isn't covered by health insurance, some program participants are paying hundreds of dollars a month to get their medicine, a prohibitive cost for some would-be patients, he said.
“Our medical program is one of the more restrictive in the country in terms of the conditions that would qualify you for medicine," he said. "It has been expanded a bit in recent years but still is difficult for patients to access.”
A proposal to legalize adult use of recreational marijuana is working its way through the state Legislature now.
Democratic Gov. Tim Walz has promised he'll sign such a bill if it gets to his desk, but advocates expect a Republican-controlled Senate to block its from moving forward. A similar bill failed in 2019 on a party line committee vote.
“As the existence of legal marijuana dispensaries gets closer to Minnesota’s borders, the natural question is, what are we waiting for?" Tarasek said. "Because so long as marijuana remains illegal, the state of Minnesota is flushing hundreds of millions of dollars in cash revenue down the toilet, because the black market doesn’t pay revenue to the Minnesota Department of Revenue for illegal marijuana.”
North Dakota has a medical marijuana program that was approved by voters in November 2016 and became effective the following year. although it took two more years before the first dispensary opened in the state.
State law allows for two manufacturers and eight dispensaries for medical marijuana, which includes dried leaves or flowers as well as further processed concentrates, solutions and capsules.
The first dispensary in the state opened in Fargo in March 2019 and seven have opened since in Grand Forks, Bismarck, Williston, Minot, Devils Lake, Jamestown and Dickinson.
The program has proven more popular than projected, said Jason Wahl, director of the state Department of Health's Division of Medical Marijuana. The state has 5,100 registered patients in its program.
"When we built the budget we had anticipated 4,000 patients by June 30, 2021," Wahl said. "So you can see we are ahead of that projection at this time.”
North Dakota has weighed legalizing recreational marijuana, but so far none of the efforts have come to fruition. Voters shot down a 2018 ballot measure by about a 20-point margin. But state lawmakers did approve a measure in 2019 lowering the penalty for possession of a small amount of marijuana.
In late March, despite House approval, the state Senate voted down an adult-use recreational cannabis program and a decriminalization proposal, then killed an attempt to put a legalization on the 2022 ballot.
However, marijuana advocates in the state have said they plan to gather the signatures needed to put measures on the 2022 ballot, including one that would enshrine cannabis as legal in the state constitution.
South Dakota has had perhaps the most recent and tumultuous battles over marijuana legislation in the region.
Voters in November approved both medical and recreational marijuana -- a stunning development in a state where marijuana was previously fully illegal.
A 2010 medical marijuana ballot measure was decisively defeated. Advocates tried and failed to gather enough signatures for a 2018 medical marijuana ballot measure. But the campaign for the 2020 measures included national support and improved fundraising. The broadened campaign showed its value, as "vote yes" commercials flooded the state's airwaves, dwarfing minimal and relatively unorganized opposition.
In November, voters overwhelmingly backed Initiated Measure 26, the medical marijuana proposal, by a wide margin: 70% to 30%. Voters more narrowly approved Amendment A, an amendment to the state constitution to legalize recreational marijuana, 54% to 46%. Both measures were set to go into effect July 1.
And yet, both measures remain beset by challenges.
Advocates said they placed fully legalization in the form of a constitutional amendment to prevent lawmakers from altering or striking it down, moves the state Legislature has made in the past with other, unrelated ballot measures.
"In South Dakota, there is a tendency to tinker with what’s passed by voters on the ballot,” said Horsted, executive director of the newly formed Cannabis Industry Association of South Dakota. “The reason they put adult use in the constitution was because they knew it wouldn’t be safe from legislative interjection, basically, trying to change things after the fact.”
Gov. Kristi Noem, who disapproves of both measures, backed a court challenge to Amendment A. In February, a state court judge struck down the new amendment as overly broad and out of step with the state's constitutional requirements for amendments. Advocates appealed the ruling to the state Supreme Court, which will hear arguments on the matter April 28.
Noem also backed a legislative effort to push back the implementation date of Initiated Measure 26, the medical marijuana law, by a year. But lawmakers bucked against a lengthy implementation delay of such a clearly popular ballot measure, and rejected a final Senate version that included something of a poison-pill marijuana decriminalization proposal.
Horsted says he's hoping his organization will now work with the state to set up a regulatory framework for medical marijuana.
Noem has said, however, that she's prepared to call a special session of the Legislature for late May or early June to address Initiated Measure 26, as well as other legislation.