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The Budding Marijuana Industry in Wisconsin; Where Things Stand and Where Things are Going

n 2014 Governor Scott Walker signed into law A.B. 726, a bill that exempted individuals with seizure disorders from criminal penalties for using and possessing cannabidiol (CBD), a component found in marijuana. Walker then signed Act 4 in 2017, expanding the law to include patients with any medical condition. Any individual with a letter from their physician can use and possess cannabidiol. However, while patients may have access to cannabidiol with a note from their doctor, the law did not legalize the production of CBD products in Wisconsin. 

Less than a year ago, Wisconsin lawmakers lifted a ban on hemp (hemp oil and CBD are synonymous) and instituted Wisconsin’s Industrial Hemp Pilot Research Program. Under this Program, Wisconsinites were free to grow, process, and sell hemp so long as they passed a background check for drug convictions. Farmers started growing hemp and a hemp store even opened up in Black River Falls as the first hemp store in the state. The main ticket item that everyone wanted to get their hands on was CBD oil, a natural oil Everything seemed to be going according to plan until the Wisconsin Attorney General’s office released a statement in May of this year to advise law enforcement agencies about the legal status of CBD in Wisconsin. Pursuant to the statement, the possession and distribution of CBD is permitted in only very limited circumstances: an individual may possess CBD only if he/she has a doctor’s certification under Section 961.32 of the Wisconsin Statutes; only a physician or pharmacy may sell CBD if they have an FDA investigational drug permit and approval from the Wisconsin Controlled Substances Board, under Sections 961.34 and 961.38 of the Wisconsin Statutes; and such possession and distribution is only permitted so long as the CBD oil does not have a psychoactive effect. Any possession or distribution of CBD outside of these exceptions is prohibited by law. 

The Attorney General further stated, as a way to remedy farmers who had been contracted to grow hemp, that farmers can grow hemp and take their crop out of state to have it processed for CBD oil. Doing so, however, would violate federal law; crossing state lines with hemp is a felony trafficking offense. So if nobody can possess CBD without a doctor’s note, nobody can process hemp into CBD oil, only doctors or pharmacists can sell CBD oil, and going over state lines to process the hemp is in violation of federal law, there are not a lot of current options for people to explore the hemp industry. 

It is important to discern the difference between CBD oil and cannabis oil (THC). THC and CBD are both chemical compounds that are extracted from hemp plants, and both contain cannabidiol. The main difference between the two is that while THC elicits a “high” or psychoactive effect, CBD oil does not. CBD oil provides similar potential health benefits to THC but does not give a natural high to users. 

There is light at the end of this tunnel. Lawmakers across Wisconsin are exploring public interest in statewide legalization of marijuana. In November, Milwaukee residents will be able to vote on whether or not marijuana should be legalized. The ballot will ask voters how they feel about approving the same, usage, and taxation of recreational marijuana, but will not automatically legalize the use of marijuana based on the results of this referendum. La Cross County, along with several other counties across Wisconsin, is considering taking similar actions and will vote soon as to whether marijuana legalization should be an issue for the County to vote on.

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by Emil Ovbiagele

Emil is an award-wining attorney and the founder of OVB Law & Consulting, S.C. He is known for his knack for creating customized legal and business solutions for his clients.