PIERRE, S.D. — The “pop-up shop" phenomenon in South Dakota may not be going down anytime soon.
Despite exiting the South Dakota House of Representatives with favorable votes, two bills looking to increase oversight on the practice — which proponents allege is allowing those seeking medicinal cannabis to earn their cards without the proper, professional examination inherent to the law — both failed by wide margins in a Wednesday, Feb. 22 hearing of the Senate Health and Human Services committee.
“The voters said yes to establishing a medical marijuana system, and they said no to establishing a recreational marijuana system,” Rep. Fred Deutsch, of Florence, said, adding that these clinics often “blur the line” between a recreational and medical program.
Deutsch was the prime sponsor behind two bills — House Bill 1129 and House Bill 1172 — that made myriad changes to cannabis law in the state: banning certain advertisements for prescription services; requiring certain actions by doctors and other providers to establish a “bona fide” relationship and allowing prescription to occur only in certain facilities, most of them related to medical care in some manner.
Violating these provisions, in most cases, would result in a six-month ban from prescribing cannabis. During his speech on the House floor, Deutsch indicated that the punishment could lose these doctors “tens of thousands of dollars.”
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In the case of laying out the locations wherein a provider may examine a patient, failing to follow those rules would simply instruct the Department of Health to deny the application.
Though well-intentioned, opponents of the bill said the increased oversight and potential punishments would have the consequence of hurting the rate of providers opting into the medical marijuana program, an already present difficulty in the nascent program that creates a hole filled by “pop-up” clinics.
“The program is brand new, and we don't want to go backward with law by just saying, ‘We’ve got to stop this right now,” Sen. Erin Tobin, of Winner, who chairs the health committee, said after the hearing. “Because I know it's a problem. We'll get there.”
Jeremiah Murphy, a lobbyist with the Cannabis Industry Association of South Dakota, argued the provisions laid out in Deutsch’s two bills were largely covered by current state law, with the potential for doctors to lose their licenses for failing to adhere to the guardrails of the medical cannabis program.
”The box checking and all that doesn't clarify things,” Murphy said. “It creates confusion.”
He further argued that, despite a litany of “pop-up shop” advertisements provided by Deutsch that all but guaranteed a medical card for an interested patient, there had been no actual evidence in the form of a patient who had participated in these sorts of clinics skirting the spirit of South Dakota’s medical cannabis program.
Despite the rejection of Deutsch’s proposals, discussion on the committee Wednesday and a debate on the Senate floor regarding a separate medical marijuana provision earlier this session indicate there is an appetite for dealing with the issue of “pop-up shops.”
Opponents of Deutsch’s bill indicated support for a proposal from Rep. Jess Olson, of Rapid City, that makes a similar attempt at curtailing the practice of advertising by cannabis practitioners.
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However, some lawmakers say the mechanism for that is already in place: the Medical Marijuana Oversight Committee, a task force on implementing the state medical marijuana program that meets during the summer.
"What's so valuable about the oversight committee is that we have a public safety representative. We have a bill that actually is going to add [a school resource officer],” said Tobin, who chaired the oversight committee last year. “We have a representative from the attorney general’s office, we have a pharmacist, we have a doctor, a nurse. That's how we can make good legislation.”
Despite criticism from Deutsch that the task force had only garnered one proposal this session, Tobin explained that the interim had been filled with more wide-ranging discussions on the new program, and said she expected the coming interim session to be more focused.
“The first thing that's going to be on the agenda will be how can we get to the bottom of pop-up clinics,” Tobin said.
Jason Harward is a Report for America corps reporter who writes about state politics in South Dakota. Contact him at 605-301-0496 or jharward@forumcomm.com.
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