PIERRE, S.D. (KELO) — The South Dakota House of Representatives has agreed that industrial hemp processors can have up to 5% THC in the products they make.

The 44-26 vote sends HB-1209 to the Senate for further action. South Dakota would join Colorado and New York as states allowing 5%.

South Dakota’s current definition of ‘product in process’ allows up to 1% of Delta-9 tetrahydrocannabinol in product being processed or transferred between one or more licensed hemp processors.

The 1% maximum represented a compromise in the 2022 session. The law originally set the maximum at three-tenths of 1%.

The legislation also calls for the shipping container carrying that product to be labeled ‘not intended for human consumption.’

State law says sale or use of industrial hemp for smoking or inhaling is prohibited. A violation is a Class 1 misdemeanor punishable by up to one year in county jail and/or a $2,000 maximum fine.

The legislation was opposed during its committee hearing last week by Derek Schiefelbein, who oversees the industrial hemp program in the South Dakota Department of Agriculture and Natural Resources.

Republican Rep. Fred Deutsch took up the opposition’s cause Tuesday. He recalled the 2022 legislation that began at 5% too. “Here we are back again looking for an increase to five percent,” he said.

South Dakota has three processors who produce CBD, according to Deutsch, with most of the focus on other hemp products. “We will not hurt the hemp industry by voting no. We will only protect the children,” Deutsch said.

House Democrat leader Oren Lesmeister defended the legislation that he sponsored. “It just didn’t work, That’s why we’re back asking for five,” Lesmeister said.

According to the USDA, South Dakota producers in 2021 planted 1,850 acres of industrial hemp and harvested 1,750 acres.

In 2022, South Dakota had the second-most industrial hemp acres in the nation, according to Lesmeister. “We are going to knock this out of the park folks. We’re asking for the chance to let this industry grow,” he said.