SIOUX FALLS, S.D. (KELO) — A bill seeking to, among other things, ban certain types of marijuana related advertising in South Dakota passed the House of Representatives along a slim margin Wednesday afternoon.

The bill in question, HB 1129, brought by Republican Rep. Fred Deutsch, seeks to add requirements to practitioners recommending the use of medical marijuana, amending state law by adding to the definition of “written certification” to say the practitioner must certify that:

  • They have assessed the patient’s medical history and current medical condition, including an in-person physical examination
  • The practitioner-patient relationship is not for the sole purpose of providing a written certification to the patient, unless the patient has been referred by a practitioner providing the patient continuing care, and
  • The practitioner has evaluated any medical cannabis contraindications with any other drug the patient is taking, assessed other medical conditions the patient has, and discussed with the patient any associated risks of taking medical cannabis considering the patient’s medical condition

The law already states that there must be a “bona fide practitioner-patient relationship” which the existing statute states is a relationship in which:

  • The practitioner completes, at the initial visit, an assessment of the patient’s medical history and current medical condition, including an appropriate in person physical examination,
  • The patient is under the practitioner’s care for the debilitating medical condition that qualifies the patient for the medical use of cannabis or has been referred by the practitioner caring for the patient’s debilitating medical condition that qualifies the patient for the medical use of cannabis to another practitioner,
  • The patient has a reasonable expectation that the practitioner providing the written certification will continue to provide follow-up care to the patient to monitor the medical use of cannabis, and
  • The relationship is not for the sole purpose of providing a written certification for the medical use of cannabis unless the patient has been referred by a practitioner providing care for the debilitating medical condition that qualifies the patient for the medical use of cannabis

Deutsch’s bill, beyond adding redundancies, also adds several new sections to the bill.

The first of these new sections is one that reads: “Before issuing a written certification for a patient, a practitioner shall:”

  • Have a bona fide practitioner-patient relationship with the patient, and
  • Assess the patient’s medical history and current medical condition as it relates to the use of medical cannabis, including an in-person physical examination of the patient appropriate to confirm the diagnosis of a debilitating medical condition and the establishment of a treatment plan for the patient. A practitioner may not conduct the in-person physical examination required by subdivision 2 by telehealth, as defined in § 34-52-1

The establishment of a bona fide relationship is already outlined in the section defining “written certification.” The requirement that they assess the patient’s medical history and conduct an in-person examination is also already in the statute, in the sections defining a “bona fide” relationship, and again under the section outlining the medical purpose defense for practitioners.

The next section added in Deutsch’s bill states that if the Dept. of Health (DOH) suspects a practitioner may have violated the law in writing a certification, the DOH secretary must notify a licensing board to investigate the practitioner.

Next, Deutsch moves onto advertising, adding a section that would ban practitioners or their employers from making an ad that:

  • Contains false or misleading statements about the medical cannabis program,
  • States or implies that the practitioner is endorsed by the state or the medical cannabis program,
  • Contains medical symbols that could reasonably be confused with symbols of established medical associations or groups,
  • Guarantees or promises the issuance of a written certification or participation in the medical cannabis program or implies such a guarantee or promise,
  • Offers to deliver through telehealth, as defined in § 34-52-1, the initial in-person visit and medical assessment as required by section 2 of this Act, or
  • Offers discounts, deals, or other financial incentives for making an appointment with a practitioner or an entity employing a practitioner

The existing law already prohibits “advertising of medical business in which untruthful or improbable statements are made or which are calculated to mislead or deceive the public.

This section also contains a provision ordering the DOH to prohibit any practitioner or clinic violating it from providing a written certification to any patient for the next six months.

Next, in a section outlining the disclosure by the state of confidential patient data, Deutsch adds a provision stating the state will provide such data to “an applicable licensing board, if that board is seeking data or information relevant to an investigation of a practitioner who holds a license issued by the board.”

In pitching his bill to the House, Deutsch, also the prime sponsor on six other marijuana focused bills, told the members that 1129 was a bill to regulate medical marijuana ‘pop-up clinics.”

“Pop-up clinics,” Deutsch began “are a creation of the marijuana industry. They weren’t part of the initiated measure. They’re not currently part of the law. Doctors are hired by pop-up clinics and in some cases flown into South Dakota.”

Despite his focus on ‘pop-up clinics’ there is nothing in HB 1129 that regulates the type of setting an examination must take place in, beyond the provision that it must be in-person, which is already part of the existing law.

Brandishing a paper in his hand, which he was shortly thereafter asked by the Speaker to put down because props aren’t allowed in debate, Deutsch read off an ad for a medical marijuana card clinic.

“Book an appointment to get certified in the South Dakota Medical Marijuana Program,” Deutsch read aloud. “BOGO — buy one, get one — one half off when you bring a friend on the same day.”

Deutsch described things he takes issue with in regard to these companies, including the way their clinics look; “I don’t know about you but it doesn’t look like any clinic that I really care to have my loved ones in;” and the fact that some companies don’t charge patients for consultations if they are found to not qualify for medical marijuana; “There are not up-front fees. We do not take payment until you’ve been certified by one of our practitioners. Should you be denied, your money will be refunded — however, we’ve never had a patient denied,” he read off an ad.

Medical marijuana card companies, often out-of-state companies operating out of leased office spaces, do not provide medical cards, and technically do not certify the patients themselves either.

Rather, what these companies do is facilitate a consultation with a practitioner licensed in South Dakota who then decided, based on an examination, whether or not to recommend them for a certification. If they decide medical marijuana would be appropriate, they send their recommendation to the DOH, who then reviews it and decides whether or not to issue a card to the patient.

These companies have been a major part of getting patients access to medical marijuana in South Dakota, where practitioners have been slow to take up the new process to certify patients.

Back in June of 2022, KELOLAND News spoke with a doctor working for a medical marijuana card clinic. At that time, that particular doctor, one of just 106 then certified, had been responsible for nearly 35% of the then 1,150 patients in the state.

In the House, Deutsch continued to list issues with ads he’s seen such as some which offer telemedicine appointments, and others which list qualifying conditions not approved by the state, issues already addressed in state law, and which would prevent a patient from being issued a card.

Deutsch argued that his addition to definition of certification, already included in existing statute, will increase patient safety.

Offering remarks on the bill, Republican Rep. Greg Jamison called out the redundancies present in Deutsch’s bill. After pointing this out, he stated his belief that perhaps this bill is not the best way to deal with issues relating to the medical industry.

“The problem with this bill is it is lacking the review and oversight of the Medical Marijuana Oversight Committee,” Jamison said. “I cannot argue with the sponsor’s enthusiasm — I just would think it’s a better practice to go through that committee as it was set up and intended to do.”

Jamison congratulated Deutsch for a second time on his enthusiasm, but asked his colleagues to vote down the bill.

Next to speak was Republican Rep. Ernie Otten, who also opposed the bill. “I know more about marijuana now than I ever cared to know,” he began “but one thing that we’re doing right here, right now — is that we’re over-regulating it.”

Otten went on to warn that over-regulation of the marijuana industry can lead to runaway costs, holding up states such as Washington and Oregon as examples. He also emphasized that the people voted for medical.

“We didn’t do this,” Otten said, pointing around at the assembled House. “The governor didn’t do this. Your neighbors did this, and they did it by over 70%. In my area, it was 72%.”

Otten said he felt the idea behind the bill was probably good, but that constant and building regulation is not the answer.

Republican Rep. Taylor Rehfeldt spoke next, saying she agrees with the concept of the bill, but that she also opposed it. Rehfeldt highlighted the fact that nearly everything within the bill designed to protect patients is already in the existing law.

Rehfeldt also argued that the bill would further limit access to patients, pointing out the fact that finding a provider in South Dakota willing and able to recommend marijuana can be challenging due to what she said is a hesitation based on lack of knowledge about the subject. “This bill does not help that — it makes it worse,” she said.

The only other legislator to speak in support of the bill, Republican Rep. Kevin Jensen suggested that some patients were meeting their doctors in the back rooms of strip clubs.

Jensen went on to say he believed these clinics were creating recreational marijuana in South Dakota. This is unlikely, again due to the fact that the DOH not only reviews all recommendations for use of marijuana before issuing cards, but also approves the individual practitioners who are making the recommendations.

The last member to speak before Deutsch gave his rebuttal was Republican Rep. Becky Drury who argued she didn’t believe the bill had any teeth.

In rebuttal, Deutsch argued that the financial loss from not being able to certify patients for six months, as well as the possibility of losing medical licenses should be all the ‘teeth’ the bill needs.

Responding to the idea that regulation of the industry should be left up to the Medical Marijuana Oversight Committee, Deutsch pointed out that there is a bill in the Senate to “reformat the oversight committee.” The bill he is referencing, SB 134, would simply add two additional members of law enforcement to the committee.

Deutsch also addressed criticism of the many redundancies in his bill. “Let me be very clear,” he said,” gesturing sharply with his hand. “There are some sentences that we have transposed from the law into the certification section that is brand new,” he said. “That’s all new and it’s clear — it’s just transposed from one area to the certification area.”

Following Deutsch’s rebuttal, the House voted 37-30 to pass the bill, with three members excused. The bill will next head to the Senate.