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Noem Flip-Flops, Now Opposes Citizen Initiative to Repeal Food Tax on Dubious Legal Technicality

Rather than seizing a golden opportunity to salvage her defeated #1 Legislative priority through the initiative process, Governor Kristi Noem has flip-flopped and demonstrated that she never really meant to repeal South Dakota’s unusual and immoral food tax.

On March 1, after the Legislature rejected her proposal to repeal the sales tax on food, KELO-TV’s Eric Mayer asked Governor Noem if she would support Rick Weiland’s petition drive to put a food-tax repeal on the 2024 general election ballot. She said it would be impossible for her to oppose that initiative:

On Wednesday, Noem told KELOLAND News South Dakota is one of only seven states that still taxes groceries and she’d support the ballot measure.

“It would be impossible for me to come out against it,” Noem said. “I think it’s the right tax at the right time. The legislature needs to realize if they chose a different tax cut this year, they better make sure they can afford the repeal on the sales tax on groceries in a couple years too. They’re going to have to do both” [Eric Mayer, “Noem Would Support 2024 Grocery Tax Ballot Measure,” KELO-TV, updated 2023.03.02].

Yesterday, South Dakota News Watch‘s Stu Whitney reported that Noem has done the impossible, resorting to Marty Jackley’s weasel words to oppose the food-tax repeal initiative:

A citizen-led campaign to eliminate South Dakota’s state grocery tax through a measure on the 2024 ballot won’t have the backing of Gov. Kristi Noem’s administration despite earlier indications she would support it.

The sticking point is concern expressed by Attorney General Marty Jackley in his official ballot explanation.

As stated, the measure would prohibit collecting sales tax on “anything sold for human consumption.” That might include tobacco, which could impact revenue the state receives from a master settlement agreement reached in 1998 between 46 states and major cigarette manufacturers as part of litigation for health-care costs and deceptive trade practices.

Jackley said South Dakota receives about $20 million annually from the settlement. His ballot explanation also notes that the measure’s wording could impact revenue received from the streamlined sales tax agreement, a cooperative effort of states, local governments and the business community to standardize the collection of sales and use tax.

Jim Terwilliger, the governor’s budget director, told News Watch that these concerns distinguish the citizen-led effort from Noem’s much-publicized campaign pledge to repeal the state’s 4.5% grocery tax.

“Repealing the sales tax on groceries was the governor’s biggest priority this past session — and something the people of South Dakota clearly want,” Terwilliger, who runs the Bureau of Finance and Management, wrote in an emailed statement.

“As drafted, the ballot measure would bring us out of compliance with streamlined sales tax and prevent the state from taxing tobacco or medical marijuana. The language from the governor’s proposal during session did not have these issues and is the better direction for the state” [Stu Whitney, “Gov. Kristi Noem Pulls Support for Grocery Tax Measure over Jeopardized Tobacco Money,” South Dakota News Watch, 2023.05.18].

So Noem hasn’t completely abandoned the idea of repealing the food tax; she just isn’t willing to work for it right now alongside Rick Weiland and the citizens of South Dakota. She is willing to let her #1 Legislative priority sit unadvanced and unrealized for another year, and she’s willing to chicken out of this fight on a dubious legal technicality.

Jackley, Terwilliger, and Noem are all speaking of a “maybe”—We do not know if a court would adopt their interpretation of “human consumption” as including tobacco in the sales tax exemption Weiland’s initiative would create. But if the initiative passed, and if someone took that initiative to court, the sponsors would be able to make a strong argument that their legislative intent is to exempt food and drink, not tobacco. They are campaigning on that straightforward interpretation, and most voters will accept that straightforward interpretation. If legislators are concerned that the wording might be twisted to make tobacco tax-free, the Legislature will have seven and a half months between the certification of the November 2024 election and the July 1, 2025, enactment date to put the sponsors’ food-focused intent into law: the Legislature can define “human consumption” for the purpose of implementing the voter’s will on this initiative to apply strictly to items consumed by eating and drinking, not smoking or chewing.

Rick Weiland responds with just that reasoning in his own statement to the press on Noem’s flip-flop:

“The Tobacco Settlement does not prohibit a state from eliminating its sales tax on groceries. The 1998 Master Settlement Agreement is 280 pages long. What provision in it does the State claim might be affected? The State hasn’t said,” said Weiland. “If there is to be any rational discussion about this subject, we need to get beyond conjecture and the State needs to say what the alleged problem is.”

Weiland further highlighted that the initiated law currently in circulation, if passed, offers an opportunity to address any concerns. “If the initiated law we are currently circulating passes, and if the courts determine that it exempts tobacco from state sales tax, the Legislature with its one party supermajority has full authority, before the initiative goes into effect on July 1, 2025, to eliminate any of the Governor’s recent concerns about any potential problem by amending the initiated law to fix any alleged problem” [Rick Weiland, press release, Dakotans for Health, 2023.05.18].

Weiland’s initiative petition offers Governor Noem a great opportunity to get out among the people, empower citizens to participate in political reform, keep this important issue on the front burner, and pressure legislators to come around to provide long-overdue tax relief. Instead, Governor Noem is choosing to play word games and discourage citizen participation in government. She doesn’t really want a food-tax repeal; she just wants another political win for which she can claim exclusive credit. Her flip-flop on the food-tax repeal initiative proves she’s still just looking out for herself, not the people of South Dakota.


  1. grudznick 2023-05-19 06:14

    Mr. Weiland should stop trying to initiate such sloppily written measures. Leave the law bill writing up to the professionals. Once again his sloppiness will be a downfall. Sloppy, sloppy, sloppy…or perhaps he is just trying to destroy the cigarette tax because he really wants to foist an income tax on us all.

  2. sx123 2023-05-19 06:45

    I agree grudz. Write a concisly worded petition for crying out loud. Unless it was intended to be vague; in that case it’s understandable it wouldn’t work.

    Somehow nearly every other state in the country has figured it out… can’t be that hard.

  3. cibvet 2023-05-19 09:44

    Only fools thought noem would back repealing the food tax. A typical political ploy to toy with the mindless voters.

  4. Mark Anderson 2023-05-19 10:39

    Since morals are always injected into food taxes everywhere. It’s time for beer drinkers to revolt. Apart from that and since the morals tax does exist, why not only tax unhealthy foods. Determining that would be very fun to watch. Just the tax over what is allowed to be called milk would be great, or grate for example.

  5. O 2023-05-19 10:45

    From a purely political view, what is the up side of the Governor supporting this repeal? She gets NO credit for it, and should it pass, it only magnifies her inability to deliver on her “#1 priority” during the legislative session (ie leading her own party in its supermajority). The food tax repeal is the tapeworm of her leadership that will only keep on taking. The “best” she can do from here is take as many House/Senate Republicans and Weiland down as she can with her in this mess. This is Doomsday protocol form here on in.

  6. Donald Pay 2023-05-19 12:14

    Here’s a definition I found for “human consumption” from Law Insider: “Human consumption means to ingest, generally through the mouth, food, drink or other substances such that the substance enters the human body but does not include inhalation.” Law Insiders are professionals.

    Now, there are other definitions, of course. One definition I found (not in Law Insider) was that human consumption meant the actual consumption of humans. Yum! Grudz will have gravy with his leg of human!!! At some point you have to use common sense. I guess there are some people who consume dog food, but I doubt any sane person (sorry, that does NOT include your AG or Governor) would say that shouldn’t be taxed under this initiative.

    Grudz wants “professionals” to write the laws. He doesn’t define “professionals.” It certainly doesn’t include him or any of his elitist friends.

  7. grudznick 2023-05-19 12:41

    Mr. Pay is being just slightly incorrect. grudznick went to the Law Insider and word for word it said:

    Intended for human consumption means intended for a human to eat, drink, or otherwise put in the mouth but does not mean intended for human inhalation.

    You put the ‘bacco in your mouth, therefore it is consumed.

    May the Shame Nun visit Mr. Pay for his half-truth.

  8. e platypus onion 2023-05-19 12:54

    I went to Law Insider and there are at least 209 examples of human consumption. Goatzilla needs to be shamed just for his imaginary goat herd and what he does to them.

  9. All Mammal 2023-05-19 13:04

    The thing that sticks out to me is shouldn’t that $20,000,000/yr tobacco settlement go straight into our nascent state medical insurance we just passed? That’d be a nice boost the people actually get to benefit off.

    Mr. Weiland is at least trying. Even the most weaselly and slimy of snake lawyer’s written initiatives would somehow be twisted by the SD AG and governor’s courts. You can’t outdo their fishy smell.

  10. Donald Pay 2023-05-19 13:35

    Um Grudz, re-read that definition again, and pay attention to this phrase, “…and not intended for human inhalation.” You might put lots of things in your mouth, Grudz, and I’m not judging you, because what you do in the privacy of your home is none of my bidness, but I suspect that you generally don’t inhale much of anything except the occasional cigar after that gravy-laden leg of human.

  11. buckobear 2023-05-19 13:45

    Goess Marty won’t be playing the food-tax card during his run for Guv.

  12. Arlo Blundt 2023-05-19 17:14

    The discussion is as inane as only Republicans can be. If you want to exempt tobacco, and keep it taxed, do so specifically in the bill when introduced in the Legislature. You could exempt Cheetos, as well.

  13. Arlo Blundt 2023-05-19 17:28

    The tobacco Grudznick has dredged up and injected into the discussion is that stuff like Copenhagen or Red Man that is a very small amount of the tobacco market and as far as I know Is the only tobacco product the consumer places in their mouth and “ingests”. I’ve been told, you’re not supposed to swallow it, rather you are to spit it out. It’s a product favored, almost exclusively by cowboys and construction workers. Since spitting tobacco into a pail or onto the sidewalk meets with social censure just about anywhere east of Oacoma, I doubt if exempting this product from the category of “food” would be controversial to any Legislator save the most Neanderthal of bunch.

  14. Mark Anderson 2023-05-19 18:58

    Arlo, Manuel Beekler, who taught me how to shoot snooker had to empty the spit every day.

  15. Charles Point 2023-05-19 19:43

    Only an Idiot would have thought that Noem’s support of the Sales Tax on Food was Honest. Look at her
    History. She is a Authoritarian Fascist, she did it for Expediency.

  16. sx123 2023-05-20 00:23

    My dream, non taxed food criteria:
    Items raw, unprocessed and ‘direct’ from nature/farm (i.e raw fruit, raw veggies, eggs, raw meat, mik, dried beans) frozen or not
    Cheese, sausages, ham, peanut butter, or minimally processed (i.e. flour) that must be heated to kill pathogens
    Baby formula
    Bread, crackers
    No salt added canned veggies or legumes

    For the most part, items found around the perimeter.

    Anything in a box or bag with a cartoon character, most frozen crap, and high sugar items get taxed.

    I”m sure Pierre can catch my drift here.

  17. Mike Lee Zitterich 2023-05-20 10:07


    As Governor Noem goes tooth and nail with her opponent for Governor, Jamie Smith over whether or not to remove sales tax on food,or whether or not the South Dakota legislature approves of the concept to lift sales tax from food, or clothing, or both, we do have some precedence of what South Dakota Voters support, and do not support.

    According to a recent Argus Leader posted article, quoting a S.D Legislator in response to the Governor’s ploy to remove sales tax from food:

    “My first reaction is that this is a desperate political stunt on the part of a political campaign who sees it’s about ready to lose what many thought was a slam dunk race,” Sen. Reynold Nesiba (D-Sioux Falls) said.

    And, while the S.D Legislature claims it did have some support in the previous session (January through March 2022) to lift the tax from food and clothes, what is evident, is that the ‘voters’ of South Dakota do not support the removal of sales tax from food or clothes as evidence of two previous public votes taken in previously held S.D Elections.

    In a 1992 public vote, when given the opportunity to reform and reduce property taxes assessed to land owners, and the chance to remove sales tax from food, clothing, as well as utilities, South Dakota voters voted 235,871 to 80,171 or a very huge majority of 75% of the voters said no to such an act. Of course, the very measure also included replacing the lost income with a statewide personal income tax and corporate excise tax in order to tax incomes, while redistributing the revenues to certain sects of the population.

    So not only did the 1992 vote send a strong signal that voters did not support the removal of sales tax on food and clothes, they also sent a strong message that we shall not tax people’s incomes or profits at all.

    Nearly a decade later, the very issue came back for a second vote of the people, in 2004 – again the voters went to the polls to vote on whether or not to remove sales tax from food, and again, the voters overwhelmingly voted 255,855 to 123,210 to maintain a steady collection of sales tax revenues on groceries. Folks, again, a very strong majority of 67% of the voters made it clear that the statewide population is fine with taxing food as a steady means of generating revenues for the State of South Dakota.

    So as Democrat Candidate Jamie Smith goes on to say:

    “We were able to work in the house in a bipartisan fashion to get this passed, but it was killed promptly upon its receipt in the Senate,” Smith said. “Our governor has not supported this nor did she support tax cuts in general throughout the last session.

    No, neither Governor Noem, nor Jamie Smith, nor the S.D Legislature have any such support of the people to remove sales tax from food, clothing, not even utilities – all things that play a direct role on the daily lives of the citizens of the state itself – twice, the voters had gone to the polls to overwhelmingly say, no, we are perfectly fine with taxing food, clothing, and utilities as the main source of statewide revenue.

    Even then, in 2016 – the S.D Legislature adopted, and the voters approved of expanding the “sales tax” collections across a larger base of citizens to include “online sales” of which yes, includes food, clothing, and all purchases made by the citizens outside the jurisdiction of the state itself, of all purchases made by S.D Citizens whereas they do business with foreign retailers of the State of South Dakota.

    Everytime, the voters had the chance to remove sales tax on food, or clothing, in place of another form of tax or a reduction of other taxes, the voters have stated, no, they do not support such removal of the tax.

    Does a 6.5% State and Local Sales Tax really hurt the pocket books of South Dakotans? Well, if the voting record of the very citizens have any such say in that concept, the very people of South Dakota say No, it does not have an impact.

    The People of South Dakota are clearly saying, we are fine with paying a tax on food, clothing, utilities, so long as we do not ever make an attempt to tax the incomes of the citizens, nor the profits of S.D businesses.

    So, as you go to the polls this November, think long and hard, do the people really have an issue with paying sales tax across the state? Your answer should be in those 1992 and 2004 Public Votes.

    Let’s remember, South Dakota does in fact help its poorest, most vulnerable citizens of the State. Whether they have restricted incomes based on seniors, disabled, or simply low income, as a State, we give you the ability to submit an application for tax reduction, thus giving back to the most vulnerable a ‘tax rebate’ or refund in order to help you pay for food, clothing, rent, and utilities. All you have to do is apply for such a program.

    So, I bring in an entirely new debate to the Sales Tax Question, I do not support lifting the “tax” from food, as do the majority of the 548,000 registered voters of the State of South Dakota. Many of whom fear what may come if we did not tax food.

    Kristi Noem is an old Tom Daschle disciple, and if you look at her voting record as a member of the U.S House of Representatives, she had always favored a progressive tax system in favor of subsidizing the Farmers, Corporations, let alone the Low Income Wage Earners. That fact alone could forecast what future agenda the Governor may or may not have today.

    Let’s face it, when you spend $100 on the cost of Food, you are merely spending $7.00 dollars to the State Government. That is hardly much of a concern for people like me, who hate a progressive tax system, but a simple steady ‘tax plan’ to generate revenue to provide for Statewide Public Highways, Administration Costs, Infrastructure, to help Provide General Welfare of the State itself.

    What people do not say, all those people who come from foreign states such as Minnesota, Iowa, California, or New York, all those people who complain about the fact that we pay ‘tax’ on food, is that the states they escaped from also forced general workers, property holders to pay a progressive income or corporate tax on their labor or capital, which allows those states to avoid paying a tax on the purchasing of food.

    What South Dakotans fear most, is if we remove the tax on food, is the fact that some would simply lead us down the same path, all of which would lead some to want to make up that difference by adding a statewide income tax on wages, wealth.

    What the media is not telling people, is the fact that we have taken three statewide public votes of the “voters” and all three times the people of South Dakota overwhelmingly had no issue with paying a sales tax, let alone one on food itself.

    I urge the people such as Greg Belfrage, Joe Sneve, and other media hosts to present that narrative of how the voters have voted in the past, a vote that has been taken nearly every 15 to 20 years at best.

    When we have he statewide program to give back to all those “State Citizens” who qualify, let alone apply for, a tax refund based on their income status, their legal status as a Senior, former Disabled Military Veteran by writing a check to them to help them pay for rents, food, utilities, clothing, what really is the intent of removing a tax from food?

    I am not the most wealthiest person by no means, and I have no issue paying a sales tax on food, if it means paying a small amount of my income on every good or service I buy, so long as ‘we’ have a statewide program that helps the low income, disabled veterans, and seniors giving back to them a small portion of their ‘income’ through sales tax refunds, and credits.

    And lastly what does not get discussed is the fact that the “State” has taken billions of dollars from Federal Grants, Monetary Funds such as the Care Act Funds, ARPA Funds come to mind, all of which allowed the State to generate a massively large surplus. That to me, is an issue, and the leading, most direct concern to me, as to what has led to such a large surplus.

    So, in return, I urge the South Dakota Legislature to decrease the statewide sales tax from 4.5% down to 3.0% for a period of 4 years, while discussing a future tax such as a Corporate Sales Tax collected from those “Citizens” who do business with the large Multi-National Corporations such as Amazon, Home Depot, Walmart, rather than doing business with locally owned Small Businesses like Sunshine, Franklin Foods, Lewis Drugs, Robson’s Hardware, and Rosy’s Cafe.

    I support a NO VOTE on removing Sales Tax on Food, but a straight across the board ‘decrease’ in the rate of sales tax.

  18. grudznick 2023-05-20 11:55

    Mr. Zitterich, is that a ‘baccy stain there on your white sleeveless tee shirt? Tighten yourself up, man.

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