CHARLESTON, S.C. (Dec. 20, 2022) – Two bills prefiled in the South Carolina Senate for the 2023 legislative session would legalize medical marijuana despite ongoing federal cannabis prohibition.

Rep. J. Todd Rutherford (D) prefiled House Bill 3226 (H3226) on Dec. 8. Rep. William G. Herbkersman (R) and Rep. Jerry T. Carter (R) prefiled House Bill 3486  (H3486) on the same day.

H3326 would decriminalize the following:

  • The possession and use of limited amounts of medical marijuana by qualified patients
  • Licensed physicians recommending medical marijuana to patients
  • The growing and dispensing of medical marijuana, while providing licensing requirements and buregulations

Qualified patients have to get a registration card that would be stored on a confidential registry. The law creates an affirmative defense for users, growers, and dispensers, while protecting physician from arrest or prosecution “in a court of law in this State or subject to discipline by a professional licensing board.”

H3486 takes a slightly different approach. It prohibits smoking medical marijuana, has separate language around decriminalization, and creates state advisory board. However, both would allow qualifying patients to access marijuana based on a physician’s recommendation.

Under current law, doctors in South Carolina can prescribe CBD oil no more than .9% THC for patients suffering from certain forms of epilepsy.


Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains a complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

The legalization of low-THC medicinal cannabis removed a small layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition remains in effect. The creation of a broader medical marijuana system would wipe more state prohibition laws from the books. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.


Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. In 2021, New YorkNew MexicoVirginia and Connecticut legalized marijuana through legislative action, and Rhode Island legalized cannabis for adult use in 2022. With Missouri and Maryland legalizing marijuana in November, there are now 37 states allowing cannabis for medical use, and 21 legalizing for adult recreational use.

The lesson here is pretty straightforward. As Tenth Amendment Center Executive Director Michael Boldin noted, “When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.”


H3226 and H3486 will both be officially introduced and referred to the Committee on Medical, Military, Public and Municipal Affairs when the South Carolina legislative 2023 session begins on Jan. 10. The bills will need to get a hearing and pass the committee by a majority vote before moving forward in the legislative process.

TJ Martinell