Official Opinion 26-06 concludes that the April 28, 2026 federal order moving certain state-licensed medical marijuana to Schedule III will likely have a negligible impact on South Dakota’s medical-marijuana program.¹ The opinion finds that 21 C.F.R. § 1301.13(k) supplies a registration pathway for manufacturers, distributors, and dispensers holding a qualifying state license, and that federal law does not require the state to discontinue the program created by Initiated Measure 26 and codified in chapter 34-20G.² That is the question the requesting members of the Medical Marijuana Oversight Committee asked. It is not the only question the statutes leave open.
Two different chapters
Chapter 34-20G authorizes and regulates the medical-marijuana program. Chapter 34-20B is the state’s controlled-substances statute. The two chapters operate side by side. A conclusion that chapter 34-20G can continue does not, by itself, decide how chapter 34-20B classifies particular substances.
SDCL § 34-20B-14(20) lists tetrahydrocannabinol in Schedule I. The same provision expressly excepts industrial hemp, FDA-approved drug products, and “marijuana in its natural and unaltered state.”³ The statute separately lists hashish and hash oil in Schedule I, making the distinction between plant material, extracts, and other preparations important to the analysis.⁴ The federal order, in turn, places marijuana subject to a qualifying state medical-marijuana license in Schedule III while leaving other marijuana in Schedule I.⁵ The federal category and the state exceptions do not map onto each other automatically.
Schedule I criteria under South Dakota law
SDCL § 34-20B-11 sets the criteria for inclusion in Schedule I. A substance may be placed in Schedule I only if it has a high potential for abuse, has no currently accepted medical use in the United States, and lacks accepted safety for use under medical supervision.⁶ The federal order rested in part on a finding that marijuana subject to a qualifying state license has a currently accepted medical use.⁷ That federal finding supplies evidence relevant to the “no currently accepted medical use” criterion in § 34-20B-11 for the defined category of marijuana the order addresses. It does not, standing alone, rewrite the state statute or compel a particular state classification for every substance covered by the state’s tetrahydrocannabinol listing.
What § 34-20B-18 and § 34-20B-27 actually say
Opinion 26-06 states that the Department of Health is “statutorily tasked with making recommendations to the Legislature as to where particular substances should be placed on the Schedule” and cites SDCL § 34-20B-18.⁸ Section 34-20B-18 is the provision that sets the criteria for inclusion in Schedule III. It is not the general recommendation-authority statute. The specific statutory provision governing recommendations to add, delete, or reschedule substances is SDCL § 34-20B-27, which directs the Department to recommend that a substance be added, deleted, or rescheduled when the Department determines that the substance has a different potential for abuse than the schedule in which it is currently listed.⁹
The trigger in § 34-20B-27 is a determination about abuse potential, not a determination about currently accepted medical use. A federal finding of accepted medical use for a defined category of marijuana may be relevant evidence. It is not, by the text of § 34-20B-27, an automatic command that the Department must reopen the Schedule I listing for tetrahydrocannabinol. Whether the Department has a duty to undertake that determination when presented with the federal order, or whether the decision remains discretionary, is a question the statutes leave for analysis rather than one Opinion 26-06 resolves.
What the federal order establishes
The April 28 order places in Schedule III marijuana that is either contained in an FDA-approved product or subject to a qualifying state-issued medical-marijuana license, along with naturally derived delta-9-tetrahydrocannabinol in those products.¹⁰ Other marijuana remains in Schedule I. The order also creates the expedited registration pathway in 21 C.F.R. § 1301.13(k) for entities holding state medical-marijuana licenses.¹¹ It does not declare that every preparation containing tetrahydrocannabinol has currently accepted medical use, nor does it address the state-law exception for marijuana in its natural and unaltered state under § 34-20B-14(20).
The petition before the Department
On August 31, 2026, WeedPress filed a request with the Department of Health asking whether the Department is required to review—or elects to review—South Dakota’s Schedule I treatment of tetrahydrocannabinol in light of the federal determination.¹² The request is directed at the Department’s responsibilities under the controlled-substances statutes. It is not a claim that the Attorney General’s opinion is incorrect on the operational-continuity question the opinion actually answered. Official opinions of the Attorney General are considered legal advice of statewide significance; they are not judicial holdings that bind courts.¹³
What remains unanswered
Opinion 26-06 separates the federal registration pathway from any automatic change to South Dakota’s controlled-substances schedules. It does not decide whether tetrahydrocannabinol, after application of the express exceptions in § 34-20B-14(20), continues to meet all three Schedule I criteria in § 34-20B-11. It does not determine whether the federal finding of currently accepted medical use warrants a review of South Dakota’s Schedule I criteria, or whether the Department has grounds to make a separate determination concerning abuse potential under § 34-20B-27. Those questions have not been answered by Opinion 26-06.
The Attorney General has explained why South Dakota’s medical program can continue. The Department of Health has a separate question before it: whether the federal findings warrant any action under the state’s own scheduling statutes. Those are different questions, and one answer should not be mistaken for the other.
¹ S.D. Att’y Gen. Op. 26-06 (Oct. 6, 2026), https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1779.
² Id.; see 21 C.F.R. § 1301.13(k) (2026); SDCL ch. 34-20G.
³ SDCL § 34-20B-14(20).
⁴ SDCL § 34-20B-14(10).
⁵ 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. 22714 (Apr. 28, 2026).
⁶ SDCL § 34-20B-11.
⁷ 91 Fed. Reg. at 22714–15.
⁸ S.D. Att’y Gen. Op. 26-06, supra note 1.
⁹ SDCL § 34-20B-27.
¹⁰ 91 Fed. Reg. at 22714.
¹¹ 21 C.F.R. § 1301.13(k).
¹² Jason Karimi, WeedPress Asks South Dakota Health Department to Rule Whether Schedule I Cannabis Still Fits the State’s Own Statute, WeedPress (Aug. 31, 2026), https://weedpress.org/2026/08/31/weedpress-asks-south-dakota-health-department-to-rule-whether-schedule-i-cannabis-still-fits-the-states-own-statute/.
¹³ S.D. Att’y Gen., Official Opinions, https://atg.sd.gov/OurOffice/OfficialOpinions/ (describing official opinions as legal advice of statewide significance that may or may not be agreed with by a court).
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