Is Kratom Legal in South Dakota? (2026 Law, Age 21 and 7-OH Cap)

Kratom is not banned in South Dakota: leaf kratom, mitragynine and 7-hydroxymitragynine (7-OH) are not listed in any of the state's controlled-substance schedules, and the state regulates kratom products instead. A substance that is not listed could still be treated as a Schedule I controlled substance analogue under SDCL 34-20B-3.1 if it meets the analogue definition in SDCL 34-20B-1(5). Under SDCL 34-20B-115 the age limit is 21, and SDCL 34-20B-115.1 bars preparing, selling or distributing a kratom product with more than 2 percent 7-OH in its alkaloid composition, with synthetic alkaloids, or without required label content; each is a Class 2 misdemeanor. For other states, see our guide to kratom laws by state.

Information last verified on 2026-10-11. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers South Dakota state law on kratom as published by the South Dakota Legislature on October 11, 2026: the kratom definitions and product rules in the State Drugs and Substances Control Act (SDCL chapter 34-20B), the general drug offenses in SDCL chapter 22-42, the penalty classes in SDCL 22-6-1 and 22-6-2, the impaired-driving statute (SDCL 32-23-1), 2025 and 2026 legislation, and one paragraph on federal law. It does not cover the Administrative Rules of South Dakota, city or county ordinances, tribal law, employer or school policies, or other states' laws.

Is kratom legal in South Dakota?

South Dakota regulates kratom rather than banning it. The state's statutes set an age limit of 21 and product rules for anyone who prepares, sells or distributes kratom, but they do not schedule the plant or its alkaloids. This page reflects the statutes as the Legislature published them on October 11, 2026. The Legislature meets again in January 2027, and federal action on 7-OH is pending, so check the official sources linked here for anything newer.

The chapter defines "kratom" as "any part of the leaf of the plant Mitragyna speciosa" and a "kratom product" as "a food as defined in § 39-4-1, or dietary ingredient, containing kratom" (SDCL 34-20B-1(13)-(14)). Those definitions govern chapter 34-20B. The words kratom and mitragynine appear in the chapter's definitions and in sections 34-20B-115 and 34-20B-115.1, and not in the schedule sections.

A "controlled drug or substance" in South Dakota "means a drug, substance, or immediate precursor in Schedules I through IV of §§ 34-20B-11 to 34-20B-26, inclusive" (SDCL 34-20B-3). Because kratom, mitragynine and 7-OH are not listed in those schedules, the state's possession and distribution felonies for controlled substances do not name them. Kratom is not listed as a controlled substance in South Dakota, but that is narrower than saying no South Dakota law can reach it, as the analogue rule and the sections below on intoxication and driving explain.

Kratom age limit: 21

SDCL 34-20B-115 provides that "any of the following actions are unlawful":

"(1) To knowingly sell or distribute a kratom product to a person under the age of twenty-one; (2) The purchase or attempt to purchase, the receipt or attempt to receive, the possession, or the consumption of a kratom product by a person under the age of twenty-one; or (3) To purchase a kratom product on behalf of, or to give a kratom product to, any person under the age of twenty-one, unless the purchaser is a parent or guardian of the person under the age of twenty-one. A violation of this section is a Class 2 misdemeanor."

Since July 1, 2025, the section applies to a "kratom product," which SDCL 34-20B-1(14) defines as a food or dietary ingredient "containing kratom" (any part of the leaf). 2025 HB 1056 struck the 2021 sentence that defined kratom, for this section, as "a substance that contains 7-hydroxymitragynine, Mitragynine, or Mitragynine pseudoindoxyl." The section reaches both sides of a sale: the seller or giver, and the person under 21 who buys, receives, possesses or consumes the product. The parent-or-guardian exception is written for the "purchaser," so it is tied to buying a product on a minor's behalf.

Product rules: the 7-OH cap, synthetics and labels

SDCL 34-20B-115.1, added by 2025 HB 1056, provides that "no person may prepare, sell, or distribute a kratom product" that:

1. "Contains a level of 7-hydroxymitragynine in the alkaloid fraction that is greater than two percent of the alkaloid composition of the product";
2. "Contains synthetic mitragynine, synthetic 7-hydroxymitragynine, or any other synthetic alkaloid or synthetically derived compound from the Mitragyna speciosa plant";
3. "Contains a poisonous or otherwise deleterious non-kratom substance, including any substance designated as a controlled substance by this chapter";
4. "Is mixed or packed with a non-kratom substance that affects the quality or strength of the kratom product, rendering the product injurious to a customer"; or
5. lacks required label content (subdivisions 5 to 7): serving information set out in the statute, "the amount of mitragynine and 7-hydroxymitragynine contained in the kratom product," and a statutory warning about consulting a licensed, qualified healthcare professional and about pregnancy and nursing.

"A violation of this section is a Class 2 misdemeanor." The 7-OH limit is a share of the product's alkaloid composition, not a per-serving or per-gram figure. The section's verbs are prepare, sell and distribute; it does not make adult possession an offense. The kratom sections of chapter 34-20B do not set up a state license or registration for kratom sellers.

Penalties for kratom offenses in South Dakota

Both kratom-specific offenses are Class 2 misdemeanors. Under SDCL 22-6-2, a Class 2 misdemeanor carries "thirty days imprisonment in a county jail or five hundred dollars fine, or both," and a Class 1 misdemeanor "one year imprisonment in a county jail or two thousand dollars fine, or both."

The general intoxication offense. SDCL 22-42-15 applies to "any person who intentionally ingests, inhales, or otherwise takes into the body any substance, except alcoholic beverages as defined in § 35-1-1, for purposes of becoming intoxicated, unless such substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope of the practitioner's practice." It does not depend on a substance being scheduled, so it could apply to kratom if the purpose element is met. No South Dakota court decision applying it to kratom is cited here. SDCL 22-42-15.1 adds a Class 1 misdemeanor for anyone who "possesses, possesses with intent to distribute, sells, or distributes a substance knowing that it is to be used in violation of § 22-42-15."

If a product contains a scheduled substance. Section 34-20B-115.1(3) already bars kratom products that contain "any substance designated as a controlled substance by this chapter." Beyond that misdemeanor, the general drug statutes apply to whatever scheduled substance a product contains. Knowing possession of a Schedule I or II substance is a Class 5 felony, and of a Schedule III or IV substance a Class 6 felony (SDCL 22-42-5). Manufacturing, distributing or possessing with intent to distribute a Schedule I or II substance is a Class 4 felony under SDCL 22-42-2 (a Class 3 felony if three or more of the section's listed aggravating circumstances apply; distribution to a minor is a Class 2 felony with a mandatory minimum of five years for a first conviction; and distributing a controlled substance for consideration when another person dies as a direct result of using it is a Class 2 felony or higher), which states that "a first conviction under this section shall be punished by a mandatory sentence in a state correctional facility of at least one year, which sentence may not be suspended," and that "a second or subsequent conviction under this section shall be punished by a mandatory sentence in a state correctional facility of at least ten years, which sentence may not be suspended." The sentencing court may depart from those terms if it "finds that mitigating circumstances exist," with its finding and "the factual basis relied upon by the court" in writing (SDCL 22-42-2.3). Under SDCL 22-6-1, a Class 4 felony carries up to ten years and a $20,000 fine, a Class 5 felony five years and $10,000, and a Class 6 felony two years or $4,000, or both. For most Class 5 and Class 6 felonies, including possession under 22-42-5, SDCL 22-6-11 makes probation the presumptive sentence unless the court "finds aggravating circumstances exist that pose a significant risk to the public" and states them on the record. None of these felony sections names leaf kratom, mitragynine or 7-OH. One caveat: under SDCL 34-20B-3.1, "a controlled substance analogue shall be treated as a controlled substance in schedule I," and SDCL 34-20B-1(5)(c) defines an analogue to include a substance intended for human consumption whose chemical structure is substantially similar to that of a Schedule I or II substance, that has a stimulant, depressant or hallucinogenic effect "substantially similar to, or greater than" that of a Schedule I or II substance, or that a person represents or intends to have that effect. That clause does not depend on a substance being listed. No South Dakota court decision applying it to 7-OH, mitragynine pseudoindoxyl or other kratom-derived compounds is cited here.

Recent changes: 2025 and 2026

HB 1056 passed the Senate 35 to 0 on February 13, 2025 and was signed by the Governor on February 25, 2025, according to the Legislature's action log. The act (SL 2025, ch. 138) has no emergency clause, so it took effect July 1, 2025 (SDCL 2-14-16). Both 2026 ban bills were titled to "ban kratom and kratom products and to provide a penalty therefor." SB 77 came out of committee "without recommendation (7-0)" on January 21, 2026 and failed a vote to place it on the calendar the next day. HB 1151 received a Do Pass recommendation (8 to 4) from committee on February 12, 2026 and failed in the full House on February 17, 2026. Neither became law, and the 2026 regular session has ended.

Who can change the schedules. Under SDCL 34-20B-27, "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." Recent changes to the schedules, such as 2026 HB 1099 and HB 1162, were made by acts of the Legislature, so a state listing of 7-OH would be expected to come through a bill; the next regular session begins in January 2027. This page does not cover the Administrative Rules of South Dakota.

Federal kratom status in October 2026

As of the October 6, 2026 text of 21 CFR 1308.11, kratom leaf, mitragynine and 7-OH are not listed in the federal schedules. A DEA temporary order placed mitragynine pseudoindoxyl, MGM-15 and MGM-16 in federal Schedule I effective August 26, 2026; South Dakota's own schedules do not list them (the analogue rule in SDCL 34-20B-3.1 is not limited to listed substances), and SDCL 34-20B-115.1(2) separately bars "any other synthetic alkaloid or synthetically derived compound from the Mitragyna speciosa plant" in kratom products. DEA's July 6, 2026 notice of intent to schedule 7-OH above a threshold is being withdrawn in a separate document, according to a new notice of intent (FR Doc. 2026-20943) filed for public inspection on October 9, 2026 and scheduled for publication on October 14, 2026, in which DEA proposes to temporarily place 7-OH and mitragynine pseudoindoxyl in Schedule I when either alone, or both combined, exceed 1 mg per gram (solids) or 1 mg per milliliter (liquids), or when the mass of mitragynine divided by that amount is less than 100. A second DEA notice of intent filed the same day (FR Doc. 2026-20942) proposes a new temporary order that would keep MGM-15 and MGM-16 in Schedule I "without change". Neither notice is an order, and the DEA says neither new order will be issued before 30 days after publication, about November 13, 2026. The August 26, 2026 order stays in effect until it expires (a temporary order expires after two years unless extended by up to one year) or is replaced by the new temporary orders, whichever comes first. The FDA says kratom is not lawfully marketed as a dietary supplement or a food additive, and it "has warned consumers not to use kratom because of the risk of serious adverse events, including liver toxicity, seizures, and substance use disorder (SUD)."

Driving after taking kratom

SDCL 32-23-1 has two clauses that are not limited to scheduled drugs. Subdivision (3) covers driving "under the influence of any controlled drug or substance obtained pursuant to a valid prescription, or any other substance, to a degree which renders the person incapable of safely driving," and subdivision (5) covers driving "under the influence of any substance ingested, inhaled, or otherwise taken into the body as prohibited by § 22-42-15." Subdivision (2) covers any controlled drug or substance not obtained under a valid prescription. The section's only numeric (per se) branch is the 0.08 percent blood-alcohol limit; it sets no per se or any-amount level for any drug. For penalties and testing, see our guide to South Dakota DUI laws.

Records

A misdemeanor or felony conviction under these sections creates a criminal record. For whether a South Dakota record can be cleared, see South Dakota expungement laws.

Related

• Kratom laws by state
• South Dakota DUI laws
• South Dakota expungement laws
• South Dakota psilocybin mushroom laws

This article provides general legal information about South Dakota law as of 2026-10-11. It is not legal advice. For advice about a specific situation, contact a lawyer licensed in South Dakota or the relevant state agency.

Last updated: 2026-10-11.

Frequently Asked Questions

Is kratom legal in South Dakota?

South Dakota does not list leaf kratom, mitragynine or 7-OH in its controlled-substance schedules, though an unlisted substance could be treated as a Schedule I controlled substance analogue if it meets SDCL 34-20B-1(5) (SDCL 34-20B-3.1). It regulates kratom products instead: the age limit is 21 (SDCL 34-20B-115), and products sold or distributed must meet the 7-OH cap, synthetic-alkaloid ban and label rules in SDCL 34-20B-115.1.

What is the kratom age limit in South Dakota?

21. Selling or distributing a kratom product to anyone under 21, buying one for or giving one to a person under 21, and buying, possessing or consuming one while under 21 are each a Class 2 misdemeanor under SDCL 34-20B-115.

Is 7-OH illegal in South Dakota?

7-OH is not listed in South Dakota's schedules, but it could be treated as a Schedule I controlled substance analogue if it meets the definition in SDCL 34-20B-1(5) (SDCL 34-20B-3.1); no South Dakota court decision applying that rule to 7-OH is cited here. SDCL 34-20B-115.1 bars preparing, selling or distributing a kratom product whose 7-OH level is greater than two percent of its alkaloid composition, or that contains synthetic 7-OH, as a Class 2 misdemeanor.

What is the penalty for selling kratom to a minor in South Dakota?

Knowingly selling or distributing a kratom product to a person under 21 is a Class 2 misdemeanor (SDCL 34-20B-115), punishable by up to 30 days in a county jail or a $500 fine, or both (SDCL 22-6-2).

Did South Dakota ban kratom in 2026?

No. Two 2026 bills to ban kratom failed: SB 77 in the Senate on January 22, 2026 and HB 1151 in the House on February 17, 2026. The 2025 regulations in SDCL 34-20B-115 and 34-20B-115.1 remain the law.

Can you get a DUI for kratom in South Dakota?

SDCL 32-23-1(3) covers driving under the influence of any other substance to a degree that renders the person incapable of safely driving, and 32-23-1(5) covers a substance taken in violation of the intoxication statute, 22-42-15. The section's only numeric limit is for alcohol.