South Dakota law tells the Department of Health when a substance belongs in Schedule I. It does not tell the Department what the key words mean.
To be included in Schedule I, a substance must have a high potential for abuse, “no accepted medical use in the United States,” and a lack of accepted safety for use under medical supervision.¹ Schedule II uses related language in the other direction: “currently accepted medical use in the United States, or currently accepted medical use with severe restrictions.”² Both provisions trace to Session Laws 1970, chapter 229.³ South Dakota’s controlled-substances chapter originated in the Uniform Controlled Substances Act approved that same year.⁴ The federal Controlled Substances Act, enacted the same year, uses a closely related formulation: “no currently accepted medical use in treatment in the United States.”⁵
Same-year enactment and similar wording do not, by themselves, prove that the Legislature copied 21 U.S.C. § 812(b) word for word. They do show that South Dakota adopted its scheduling criteria during the same model-law era. WeedPress has not identified a published South Dakota judicial decision, attorney-general opinion, or administrative rule defining “accepted medical use” for purposes of §§ 34-20B-11 and 34-20B-15.⁶
Accepted by whom? FDA? Physicians? Medical organizations? States? Researchers? Regulators? Must acceptance be nationwide? Can a substance have an accepted medical use without FDA approval? And in 2026, after South Dakota built a medical-cannabis program and the Department of Justice placed FDA-approved drug products containing marijuana, and marijuana subject to a state medical marijuana license, in federal Schedule III: can widespread medical use under state law count as evidence of accepted medical use?⁷
This article does not answer those questions for Pierre. Federal regulators and federal courts have spent four decades fighting over the same family of words. South Dakota enacted the same family of words and never said which fight it joined.
Why Federal History Is Relevant—but Not Controlling
South Dakota’s Supreme Court has recognized that the State’s 1970 controlled-substances legislation originated in the Uniform Controlled Substances Act. When construing that legislation, the Court has consulted the Uniform Act’s commentary and analogous federal controlled-substance law.⁸ That does not transform federal “currently accepted medical use” decisions into binding interpretations of § 34-20B-11. It does explain why forty years of federal litigation over nearly identical scheduling terminology is relevant when South Dakota’s own statute supplies no definition.
The juxtaposition is sharper than it first appears. In Grinspoon, DEA invoked the Commissioners’ Notes to the Uniform Act. The First Circuit explained that those notes could not establish what Congress intended in the federal CSA, because Congress acted first.⁹ South Dakota sits on the other side of that timeline. Its Supreme Court treats the Uniform Act as the origin of the 1970 state enactment and has used the Commissioners’ Notes as an interpretive aid.¹⁰
Those federal cases still interpret a different statute. That is why they are not controlling. They are examined here because they expose the interpretive problem South Dakota has not addressed.
The Phrase That Sounds Simple Until Someone Has to Define It
Congress wrote “currently accepted medical use in treatment in the United States” into 21 U.S.C. § 812(b) and did not define it.¹¹ South Dakota wrote a shorter version—“no accepted medical use in the United States”—and also did not define it.¹² The state statute does not import DEA’s five-part test, HHS’s later two-part test, an FDA-approval requirement, or any other administrative glossary. It just uses the words.
That is not a drafting quibble. When a statute uses an undefined criterion that another sovereign has spent forty years interpreting, an obvious interpretive question follows: what legal test is South Dakota using? The missing step looks like this:
Statute → undefined criterion → ? → present classification.
The question now is what South Dakota puts in the missing space.
1987: Grinspoon Exposes the Problem
The first major appellate fight was not about marijuana. In Grinspoon v. DEA, the First Circuit reviewed DEA’s placement of MDMA in Schedule I.¹³ DEA had relied on criteria that treated Food, Drug, and Cosmetic Act concepts—particularly the absence of FDA approval for interstate marketing—as controlling the CSA inquiry.¹⁴
The court held that FDA approval can establish accepted medical use, but the absence of FDA approval cannot automatically establish the absence of accepted medical use.¹⁵ The statutory language was ambiguous. Scientifically relevant FDA concepts could inform the analysis. What DEA could not do was import FDCA interstate-marketing requirements in a way that made lack of FDA approval dispositive.¹⁶
The court confronted another problem that sounds current in South Dakota. DEA argued that “accepted” meant “generally approved” or “generally agreed upon.” The First Circuit’s response was that this still does not identify who must generally be in agreement. The term “accepted,” the court said, “does not cure the statute’s ambiguity.”¹⁷
What Grinspoon did not hold matters as much as what it did. It did not hold that marijuana has accepted medical use. It did not announce a universal definition. It did not hold FDA approval irrelevant. It held that DEA’s particular construction could not make lack of FDA approval the whole test.¹⁸
After the remand, the problem did not go away. It moved.
What Happened After the Remand
DEA did not abandon the concept. It built a test.
In the marijuana proceeding that followed, Administrative Law Judge Francis Young recommended in 1988 that marijuana be moved to Schedule II.¹⁹ Administrator John Lawn rejected that recommendation in 1989. Lawn rejected the idea that acceptance among a “respectable minority” of physicians was enough and used an eight-factor approach to accepted medical use.²⁰
That order went to the D.C. Circuit in Alliance for Cannabis Therapeutics v. DEA.²¹ The court agreed the statutory phrase was ambiguous and largely accepted DEA’s authority to formulate a scientific test. It also explained that Grinspoon had not barred DEA from borrowing scientifically relevant FDA concepts. What Grinspoon barred was treating the absence of FDA approval as conclusive.²²
The D.C. Circuit still remanded. Three of DEA’s eight criteria appeared potentially impossible to satisfy while marijuana remained in Schedule I.²³ The definition went back to DEA—again.
1992: DEA Creates the Five-Part Test
On March 26, 1992, Administrator Robert Bonner issued the remand order that produced the test federal practice used for the next three decades.²⁴ A drug without FDA approval could still demonstrate currently accepted medical use if:
1. its chemistry is known and reproducible;
2. adequate safety studies exist;
3. adequate and well-controlled studies establish efficacy;
4. qualified experts accept the drug; and
5. the scientific evidence is widely available.²⁵
DEA concluded marijuana did not meet that standard and kept it in Schedule I.²⁶ The courts had not handed DEA a definition. DEA constructed one administratively. That distinction is the part that travels to Pierre.
1994: The Five-Part Test Survives Review
Challengers attacked the revised standard. In Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), the D.C. Circuit upheld DEA’s application of the five-part framework.²⁷ The court treated “currently accepted medical use” as still ambiguous, noted that the earlier eight-factor approach had been largely permissible, and accepted the revision that followed the prior remand.²⁸
The five-part test is not in the text of the Controlled Substances Act. It developed through statutory ambiguity, agency interpretation, judicial limitation, agency revision, and further judicial review. WeedPress has identified no published South Dakota equivalent of that interpretive chain.
If South Dakota never adopted DEA’s five-factor construction, what legal basis would make that federal administrative test controlling—or otherwise persuasive—in construing § 34-20B-11(2)? Conversely, if the Department creates its own construction now, what statutory text, history, scientific record, and administrative-law principles constrain that construction?
The Five-Part Test Becomes Federal Orthodoxy
DEA applied the same five elements in later marijuana denials, including 2011 and 2016.²⁹ The 2016 denial still recited those elements and concluded marijuana failed them.³⁰ An agency-created reading of undefined statutory language had hardened into the federal working standard.
Then the factual world under the words changed.
2023–2024: HHS Says the Old Framework Does Not Capture Everything
When Grinspoon was decided, modern state medical-cannabis programs did not exist. When DEA wrote the five-part test in 1992, California had not enacted Proposition 215. By 2023, tens of thousands of licensed practitioners were recommending cannabis to millions of registered patients under state programs.³¹
In its 2023 scheduling review, HHS concluded that DEA’s prior approach did not adequately account for that evidence. It used a two-part inquiry:
First, is there widespread, current experience with medical use by licensed health-care practitioners operating under implemented jurisdiction-authorized programs, recognized by entities that regulate medical practice?
Second, is there credible scientific support for at least one of those medical uses?³²
HHS concluded marijuana satisfied that approach, including for anorexia related to a medical condition, nausea and vomiting, and pain.³³
On April 11, 2024, the Justice Department’s Office of Legal Counsel examined the question and concluded that DEA’s traditional five-part approach was “impermissibly narrow,” and that HHS’s two-part inquiry is sufficient to establish currently accepted medical use under the CSA even if the drug is not FDA-approved and would not satisfy the five-part test.³⁴ OLC also concluded that HHS’s overall CAMU recommendation does not bind DEA, while the scientific and medical determinations underlying that recommendation receive separate treatment under 21 U.S.C. § 811(b).³⁵ HHS did not replace DEA’s test by fiat. It developed and applied another construction of an undefined statutory phrase—and OLC agreed that construction can be legally sufficient even where the five-part test is not met.
DEA continues to acknowledge both frameworks in 2026 scheduling notices involving other controlled substances.³⁶
The federal arc is therefore:
1987 — lack of FDA approval is not automatically the answer, and “accepted” does not identify who must agree.
1992 — DEA constructs five factors.
1994 — the D.C. Circuit upholds the revised framework.
2023 — HHS says that framework does not adequately capture modern state-authorized medical use.
2024 — OLC concludes the alternative test can legally establish accepted medical use.
2026 — DEA continues to describe both tests in other scheduling matters; a final order placed FDA-approved marijuana products and marijuana subject to a state medical marijuana license in Schedule III; and the notice of hearing on the broader proposed transfer described that proposal as consistent with HHS’s view that marijuana has a currently accepted medical use.³⁷ South Dakota still has not said which test, if either, its own statute uses.
Bring the History Home to § 34-20B-11
South Dakota did not write “not approved by FDA.” It did not write “fails DEA’s five-part test.” It did not write “fails the federal definition of accepted medical use.” It wrote “no accepted medical use in the United States.”³⁸
What construction does the State give those words?
Does it follow Grinspoon’s limited holding that lack of FDA approval is not dispositive? DEA’s 1992 five-part test? The 2023 HHS two-part approach that OLC said can establish accepted medical use? Some independent South Dakota reading? Ordinary meaning? Federal administrative determinations as they stand in 2026?
Who must accept the medical use for purposes of South Dakota’s § 34-20B-11(2), and what evidence determines whether that acceptance exists?
That raises a particularly concrete question for the Department: does South Dakota believe its own medical-cannabis program is evidence relevant to whether cannabis has an “accepted medical use in the United States”?
The statute does not answer. WeedPress has not identified a published South Dakota construction that answers it. The 1970 source note and the Uniform Act pedigree explain why the words look familiar.³⁹ Familiar is not the same as construed.
The Factual World Changed While the Words Stayed the Same
Evidence that could not have existed when federal agencies first struggled to define the phrase now exists at scale. South Dakota is part of that evidence. The State is not being asked only to evaluate a practice occurring in California or Colorado. It authorizes and regulates medical cannabis here, issues patient cards, licenses establishments, and still lists cannabis among substances that, for Schedule I purposes, must have “no accepted medical use in the United States.”⁴⁰
That creates an unresolved statutory tension. Chapter 34-20G authorization does not, by itself, establish accepted medical use in the United States for scheduling purposes. The State can argue the two chapters do different work. The narrower point is still the stronger one: a 1970 undefined criterion and a 2020s medical program operated by the same State now sit side by side, and no published South Dakota construction explains how they fit.
Where the Record Stops
Nearly forty years after Grinspoon, “accepted medical use” remains a phrase whose meaning has been shaped less by statutory definition than by successive agency interpretations, judicial challenges, and changing medical practice.
Nobody found a hidden definition. DEA had to construct one. Courts reviewed that construction. Courts rejected portions of earlier constructions. DEA reconstructed it. Decades passed. Medical practice changed. HHS developed another construction. OLC then concluded that DEA’s exclusive approach was impermissibly narrow.
The federal government spent approximately four decades demonstrating that the phrase does not supply its own operational test.
South Dakota uses substantially the same concept in its own Schedule I statute. The statute does not tell the public whether those words mean FDA approval, DEA’s traditional five-part test, widespread state-authorized medical practice, some combination of those considerations, or something else.
That leaves a basic question unanswered: what does South Dakota mean when its law says a Schedule I substance has “no accepted medical use in the United States”?
If the Department looks to a federal test, the next question is why that test supplies the meaning of South Dakota’s statute. If the Department applies an independent South Dakota construction, the next question is what text, history, evidence, and principles of state law support it.
Either path would do something the statute itself does not: put content into the words “accepted medical use.”
That is the missing step:
Statute → undefined criterion → ? → present classification.
WeedPress intends to put that question squarely before the Department of Health.
The answer matters beyond marijuana. It asks something basic about controlled-substance scheduling in South Dakota: when the Legislature makes a factual criterion a condition of Schedule I, who decides what that criterion means—and what happens when the factual world changes while the statutory words remain the same?
Footnotes
¹ S.D.C.L. § 34-20B-11 (2026), https://sdlegislature.gov/Statutes/34-20B-11.
² S.D.C.L. § 34-20B-15 (2026), https://sdlegislature.gov/Statutes/34-20B-15.
³ Id. § 34-20B-11 source note (SL 1970, ch. 229, § 8(a); SDCL Supp. § 39-17-54; SL 1976, ch. 158, § 42-11); id. § 34-20B-15 source note (SL 1970, ch. 229, § 8(b)).
⁴ See State v. One 1972 Pontiac Grand Prix, 90 S.D. 455, 242 N.W.2d 660, 661–62 (1976) (South Dakota’s 1970 Drugs and Substances Control Act “had its origin in the Uniform Controlled Substances Act” approved in 1970).
⁵ 21 U.S.C. § 812(b)(1)(B), https://www.law.cornell.edu/uscode/text/21/812.
⁶ A published South Dakota opinion or formal administrative construction of “accepted medical use” in §§ 34-20B-11 and 34-20B-15 has not been identified.
⁷ Schedules of Controlled Substances: Rescheduling of Food and Drug Administration Approved Products Containing Marijuana From Schedule I to Schedule III; Corresponding Change to Permit Requirements, 91 Fed. Reg. 22,714 (Apr. 28, 2026), https://www.govinfo.gov/app/details/FR-2026-04-28/2026-08176. The order applies to FDA-approved drug products containing marijuana and to marijuana subject to a state-issued license to manufacture, distribute, or dispense marijuana or products containing marijuana for medical purposes. Unlicensed bulk marijuana remains in Schedule I.
⁸ One 1972 Pontiac Grand Prix, 242 N.W.2d at 661–62 (examining the Uniform Act, Commissioners’ Notes, and analogous federal law when construing the 1970 enactment).
⁹ Grinspoon v. DEA, 828 F.2d 881, 887–88 (1st Cir. 1987) (Uniform Act commentary could not establish congressional intent because the federal CSA preceded the Uniform Act), https://law.justia.com/cases/federal/appellate-courts/F2/828/881/368975/.
¹⁰ One 1972 Pontiac Grand Prix, 242 N.W.2d at 661–62.
¹¹ 21 U.S.C. § 812(b)(1)(B).
¹² S.D.C.L. § 34-20B-11(2). The state text omits the federal words “currently” and “in treatment.”
¹³ Grinspoon, 828 F.2d 881.
¹⁴ Id. at 884–91.
¹⁵ Id. at 886–91.
¹⁶ Id. at 887–91.
¹⁷ Id. at 886–87 (“[T]his alone does not inform us as to who must generally be in agreement. . . . [T]he term ‘accepted’ does not cure the statute’s ambiguity.”).
¹⁸ Id. The case reviewed MDMA scheduling, not a marijuana final order.
¹⁹ See Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 938 (D.C. Cir. 1991), https://www.courtlistener.com/opinion/7912395/alliance-for-cannabis-therapeutics-v-drug-enforcement-administration/.
²⁰ See Marijuana Scheduling Petition; Denial of Petition, 54 Fed. Reg. 53,767 (Dec. 29, 1989).
²¹ Alliance for Cannabis Therapeutics, 930 F.2d 936.
²² Id. at 939–40.
²³ Id. at 940.
²⁴ Marijuana Scheduling Petition; Denial of Petition; Remand, 57 Fed. Reg. 10,499 (Mar. 26, 1992), https://archives.federalregister.gov/issue_slice/1992/3/26/10498-10508.pdf.
²⁵ Id. at 10,504–06.
²⁶ Id. at 10,506–08.
²⁷ Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), https://law.justia.com/cases/federal/appellate-courts/F3/15/1131/536307/.
²⁸ Id. at 1134–35.
²⁹ Denial of Petition To Initiate Proceedings To Reschedule Marijuana, 76 Fed. Reg. 40,552 (July 8, 2011), https://www.federalregister.gov/documents/2011/07/08/2011-16994/denial-of-petition-to-initiate-proceedings-to-reschedule-marijuana; Denial of Petition To Initiate Proceedings To Reschedule Marijuana, 81 Fed. Reg. 53,688, 53,700–07 (Aug. 12, 2016), https://www.federalregister.gov/documents/2016/08/12/2016-17954/denial-of-petition-to-initiate-proceedings-to-reschedule-marijuana.
³⁰ 81 Fed. Reg. at 53,700–07.
³¹ Schedules of Controlled Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44,597 (May 21, 2024) (summarizing the August 29, 2023 HHS recommendation and OASH Part 1 findings of widespread practitioner and patient participation under state-authorized programs), https://www.federalregister.gov/documents/2024/05/21/2024-11137/schedules-of-controlled-substances-rescheduling-of-marijuana.
³² Id.
³³ Id.
³⁴ Questions Related to the Potential Rescheduling of Marijuana, 48 Op. O.L.C. __ (Apr. 11, 2024), https://www.justice.gov/olc/opinion/questions-related-potential-rescheduling-marijuana.
³⁵ Id. (HHS’s overall CAMU recommendation is not binding on DEA; the scientific and medical determinations underlying that recommendation are binding until formal rulemaking begins and thereafter receive significant deference under 21 U.S.C. § 811(b)).
³⁶ See Schedules of Controlled Substances: Temporary Placement of 7-Hydroxymitragynine and Related Substances in Schedule I, 91 Fed. Reg. (July 6, 2026), https://www.govinfo.gov/content/pkg/FR-2026-07-06/pdf/2026-13580.pdf (reciting DEA’s traditional five-part CAMU test, HHS’s two-part jurisdiction-authorized-program test, and OLC’s 2024 conclusion that the two-part test can establish CAMU); see also 91 Fed. Reg. (Aug. 12, 2026), https://www.govinfo.gov/content/pkg/FR-2026-08-12/pdf/2026-16413.pdf (same dual-framework discussion in a notice involving O-desmethyltramadol).
³⁷ Schedules of Controlled Substances: Rescheduling of Marijuana, 91 Fed. Reg. 22,777 (Apr. 28, 2026) (notice of hearing describing the proposed transfer as “consistent with the view of” HHS that marijuana has a currently accepted medical use), https://www.govinfo.gov/content/pkg/FR-2026-04-28/html/2026-08177.htm; 91 Fed. Reg. 22,714; 89 Fed. Reg. at 44,597.
³⁸ S.D.C.L. § 34-20B-11(2).
³⁹ See supra notes 3–4, 8–10.
⁴⁰ Compare S.D.C.L. § 34-20B-11 with S.D.C.L. ch. 34-20G.
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