South Dakota’s Commissioner Could Add, Delete, or Reschedule Drugs in 1970. A 1976 Criminal-Code Revision Replaced That Power With a Recommendation to the Legislature.

Alabama’s health chief said the state’s medical program was already live while marijuana remained Schedule I there, explaining that the medical exemption statute protected people authorized to possess it.¹

South Dakota’s leftover question is different.

WeedPress Asks South Dakota Health Department to Rule Whether Schedule I Cannabis Still Fits the State’s Own Statute

SDCL § 34-20B-11 still says a substance belongs in Schedule I only if it has a high potential for abuse, no accepted medical use in the United States, and a lack of accepted safety under medical supervision.² SDCL § 34-20B-27 says the Department of Health shall recommend addition, deletion, or rescheduling when it determines a substance has a “different potential for abuse.”³ Abuse potential is one Schedule I criterion. Accepted medical use is another. The April 28 federal rule did not rewrite Pierre’s sentences. It does sharpen the question of what current South Dakota law supplies when an already-controlled substance may fail a criterion other than abuse potential.⁴

The 1970 and 1976 Session Laws now show how those two sentences got into the same chapter.

In 1970 the Legislature enacted chapter 229, Senate Bill 192. Section 7 did not ask the agency to write a letter to Pierre. It gave the commissioner of drugs and substances control, housed in the Attorney General’s office, the power to move substances.⁵

Section 7 opened by controlling everything listed in section 8. Then it said:

The commissioner shall add, delete or reschedule a substance when he determines that such substance has a different potential for abuse. In making such a determination, the commissioner shall consider the following:

(1) its actual or relative potential for abuse;

(2) scientific evidence of its pharmacological effect, if known;

(3) the state of current scientific knowledge regarding the substance;

(4) its history and current pattern of abuse;

(5) the scope, duration, and significance of abuse;

(6) what, if any, risk there is to public health;

(7) its psychic or physiological dependence potential or liability;

(8) whether the substance is an immediate precursor of a substance already controlled under this Act, and

(9) its other uses, both medical and commercial.⁶

Subsection (b) separately required findings on those factors and provided that the commissioner “shall issue an order controlling the substance” upon the specified abuse finding.⁷ Subsection (c) is the immediate-precursor rule that still survives as § 34-20B-28.⁸

Section 8 tied schedule placement to that inquiry. For Schedule I, “after considering those factors contained in section 7, paragraph (a),” the commissioner had to find high potential for abuse, no accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.⁹ Marihuana and tetrahydrocannabinol were listed in that schedule.¹⁰ Definitions matched the architecture. “Control” meant add, remove, or change placement under section 7. A controlled substance included substances added by the commissioner under the Act and chapter 1-26.¹¹

That is closer to Uniform Controlled Substances Act § 201 than today’s code.¹² The 1970 Legislature did not withhold administrative scheduling authority. It conferred it, required nine factors, including medical and commercial uses, and then required separate schedule findings that included accepted medical use. Those are distinct concepts in the same enactment. Potential for abuse was the control trigger in § 7(a). Medical use was both a factor in the broader inquiry and a separate Schedule I criterion in § 8.

A January 23, 1970 South Dakota Supreme Court decision sits next to that session. In State v. Johnson the Court held that the 1968 drug act could not incorporate future federal regulations as the definition of a crime.¹³ Chapter 229 was enacted later that year. That is chronology. It is not committee history, and it does not explain a 1970 decision to keep schedules only in statute. The enacted text gave the commissioner the power to move them.

Six years later the Legislature took that power out of the successor section.

Chapter 158 of the 1976 Session Laws is Senate Bill 29, titled “Revising Criminal Laws.” It is a recodification of Title 22 and related provisions, approved February 26, 1976, and generally effective April 1, 1977.¹⁴ It is not a standalone drug bill. Inside that revision, Part 42 amended the then-Title 39 drug chapter.

Section 42-17 amended § 39-17-69 to read:

The department shall make recommendations to the Legislature that a substance be added, deleted or rescheduled when the department determines that such substance has a different potential for abuse.¹⁵

That is today’s § 34-20B-27. The official source note still cites both 1970 § 7(a) and 1976 § 42-17.¹⁶

In the same block, sections 42-11, 42-14, 42-15, and 42-16 restated the Schedule I through IV criteria. Schedule I still required no accepted medical use in the United States. Schedule II required currently accepted medical use, or such use with severe restrictions. Schedule III required “well documented and approved medical use in the United States.” Schedule IV required currently accepted medical use.¹⁷ Those criteria remain, in substance, in §§ 34-20B-11, 34-20B-15, 34-20B-18, and 34-20B-24.¹⁸

What the 1976 criteria sections, on the face of the pages now in hand, do not contain is the 1970 preface: “after considering those factors contained in section 7, paragraph (a).” The nine factors do not reappear in § 42-17. The findings-and-order sentence does not reappear there. The commissioner’s “shall add, delete or reschedule” verb does not reappear there. In their place is a Department recommendation keyed to different potential for abuse.

That transformation is the enacted text. It is not proof the 1976 Legislature accidentally created a hole, and it is not proof § 27 cannot reach a change in medical-use status. Motive is a separate file: S.B. 29 committee minutes and the introduced draft of § 42-17. Recodification bills often move power without a floor speech about every clause. Silence is not a finding.

The Legislature revisited the allocation of scheduling authority in 2017. House Bill 1162 would have transferred administration of Schedules I through IV to the Board of Pharmacy, authorized the Board by rule to add, delete, or reschedule substances after considering eight enumerated factors, and rewritten the schedule criteria so that the Board would place substances according to findings under those criteria. Section 12 would have repealed § 34-20B-27. The proposal did not become law. It was first read and referred to House State Affairs on February 1, 2017, and withdrawn at the prime sponsor’s request the next day. The available legislative record located so far does not show a substantive committee hearing or testimony on the proposal. It therefore supplies no present authority. It does show that, in 2017, legislation was introduced that would have coupled the existing schedule criteria with Board of Pharmacy authority to change placement and would have repealed § 34-20B-27.¹⁹ A withdrawn bill cannot resolve what current law already means. Someone could still argue from its introduction that its sponsors thought new legislation was required before an agency could exercise direct placement authority. The introduced text proves what the bill proposed. It does not prove why the sponsor thought a change was necessary.

What the two Session Laws do establish is the source of the structural question now before the Department.

Current § 34-20B-11 still uses mandatory criteria language: to be included in Schedule I, a substance shall have no accepted medical use in the United States. Current § 34-20B-27’s express recommendation trigger is a Department determination of different potential for abuse. The 1970 statute expressly made medical and commercial uses one consideration in the inquiry governing add, delete, or reschedule authority, while separately making accepted medical use a criterion of schedule placement. The 1976 statute retained the medical-use criteria while replacing the former administrative scheduling provision with a recommendation-to-the-Legislature provision expressly keyed to a Department determination of different potential for abuse. The April federal rule, together with Alabama’s treatment of its different statutory scheme, gives that drafting history present practical significance.²⁰

The Department already has an August 31 petition on this statute. The question that filing now puts before the Department, without answering it for the agency, is this:

The 1970 architecture directed the commissioner to add, delete, or reschedule after considering nine factors, including medical and commercial uses, and to place a substance in Schedule I only after those factors and a finding of no accepted medical use. The 1976 revision retained the Schedule I medical-use criterion and replaced the administrative scheduling machinery with a duty to recommend when the Department finds a different potential for abuse. What mechanism does the Department understand current South Dakota law to provide when an already-controlled substance may cease to satisfy a schedule criterion other than abuse potential?

That is not a demand that Health legalize adult use. It is not Alabama’s thirty-day clock. It is not a claim that Schedule III is the only destination. South Dakota’s own Schedule III language is “well documented and approved medical use,” which is not identical to Schedule I, II, or IV.²¹ It is the question the code actually creates after the April rule and after two Session Laws that can now be cited by page.

The next artifact, if anyone wants the “why,” is S.B. 29’s committee record. The next filing artifact is already written. Two session-law pages. Then the same question.

Footnotes

¹ Anna Barrett, Alabama Officials Withdraw Objection To Rescheduling Marijuana Under State Law In Line With Trump’s Federal Move, Marijuana Moment (Sept. 19, 2026), https://www.marijuanamoment.net/alabama-officials-withdraw-objection-to-rescheduling-marijuana-under-state-law-in-line-with-trumps-federal-move/.

² SDCL § 34-20B-11, https://sdlegislature.gov/Statutes/34-20B-11.

³ SDCL § 34-20B-27, https://sdlegislature.gov/Statutes/34-20B-27.

⁴ 91 Fed. Reg. 22,714 (Apr. 28, 2026), https://www.govinfo.gov/content/pkg/FR-2026-04-28/pdf/2026-08176.pdf; Jason Karimi, Alabama’s Health Chief Said Schedule III Didn’t Change a Live Medical Program, WeedPress (Sept. 19, 2026), https://weedpress.org/2026/09/19/alabamas-health-chief-said-schedule-iii-didnt-change-a-live-medical-program-south-dakota-still-has-to-explain-what-no-accepted-medical-use-in-the-united-states-mea/.

⁵ SL 1970, ch. 229 (S.B. 192), §§ 1–2, 7, https://www.sdlegislature.gov/api/SessionLaws/1970/229/null/null.

⁶ SL 1970, ch. 229, § 7(a), at 272.

⁷ SL 1970, ch. 229, § 7(b), at 272.

⁸ SL 1970, ch. 229, § 7(c), at 273; SDCL § 34-20B-28, https://sdlegislature.gov/Statutes/34-20B-28.

⁹ SL 1970, ch. 229, § 8(a), at 273.

¹⁰ SL 1970, ch. 229, § 8(a)(1)c.7, c.12, at 275.

¹¹ SL 1970, ch. 229, § 6(d)–(e), at 270.

¹² Unif. Controlled Substances Act § 201 (1970); Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, § 201, 84 Stat. 1245 (codified as amended at 21 U.S.C. § 811), https://www.law.cornell.edu/uscode/text/21/811.

¹³ State v. Johnson, 173 N.W.2d 894 (S.D. 1970), https://www.courtlistener.com/opinion/1650803/state-v-johnson/.

¹⁴ SL 1976, ch. 158 (S.B. 29) (approved Feb. 26, 1976; generally effective Apr. 1, 1977), https://www.sdlegislature.gov/api/SessionLaws/1976/158/null/null.

¹⁵ SL 1976, ch. 158, § 42-17, at 285.

¹⁶ SDCL § 34-20B-27 (source note), https://sdlegislature.gov/Statutes/34-20B-27.

¹⁷ SL 1976, ch. 158, §§ 42-11, 42-14 to 42-16, at 284–85.

¹⁸ SDCL §§ 34-20B-11, 34-20B-15, 34-20B-18, 34-20B-24, https://sdlegislature.gov/Statutes/34-20B-11; https://sdlegislature.gov/Statutes/34-20B-15; https://sdlegislature.gov/Statutes/34-20B-18; https://sdlegislature.gov/Statutes/34-20B-24.

¹⁹ H.B. 1162, 92d Leg., Reg. Sess. (S.D. 2017) (introduced text), https://sdlegislature.gov/Session/Bill/8221/43581; bill history, https://sdlegislature.gov/session/bill/8221; H.J. 250 (Feb. 1, 2017); H.J. 278 (Feb. 2, 2017).

²⁰ Supra notes 1, 4.

²¹ SDCL § 34-20B-18, https://sdlegislature.gov/Statutes/34-20B-18.