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Wisconsin Briefs
Wisconsin Legislative
from the Legislative Reference Bureau
Reference Bureau
Brief 14-8 September 2014
MARIJUANA REGULATION IN THE STATES
In 2012, two states, Washington and “schedules.” Schedules I and II include sub-
Colorado, adopted significant changes to stances which have a high potential for abuse.
their drug policy as the result of popular votes Schedule I substances are deemed to have
to decriminalize the possession, transfer, and no medical utility and no safe dosage, while
cultivation of marijuana for personal or recre- Schedule II substances are characterized as
ational use. Both ballot measures passed by medically useful but potentially dangerous
margins of approximately 56 percent in favor if abused. Schedules III, IV, and V contain
to 44 percent opposed. substances with lower potentials for abuse for
Two years prior, several Wisconsin com- which there is a currently accepted medical
munities had popular votes of their own re- use. Under the federal Controlled Substances
garding marijuana. On November 2, 2010, Act, tetrahydro-cannabinols (THC), the hallu-
Wisconsin voters in Dane County and the cinogenic contained in marijuana, is classified
City of River Falls were asked if they support as a Schedule I controlled substance. Federal
medical access to marijuana for seriously ill law prohibits the possession, manufacture,
residents as long as their doctor recommends distribution, and dispensing of any Schedule
its use. The nonbinding referendum passed I controlled substance and makes no exemp-
75.5 percent to 24.5 percent in Dane County tion for the use of marijuana for medical pur-
and 68 percent to 32 percent in River Falls. poses.
While the results of the advisory referenda do In Wisconsin, the primary statutes gov-
not change law in Wisconsin, they may reflect erning drug-related crimes are contained in
a public interest in legalizing the medical use Chapter 961 of the Wisconsin Statutes, the
of marijuana in the state. Uniform Controlled Substances Act. It pro-
Today Washington and Colorado re- hibits the manufacture, distribution, and de-
main the only two states to have decriminal- livery of marijuana, and the possession of
ized marijuana for nonmedical purposes, but marijuana with intent to manufacture, distrib-
other states are considering similar propos- ute, or deliver it (see Table 1 for the penalties).
als. Nationally, 23 states and the District of The law also prohibits a person from pos-
Columbia (DC) have now adopted laws re- sessing or attempting to possess marijuana. A
lated to the medical use of marijuana in some person who violates this prohibition and who
form. This brief provides background infor- has no prior drug convictions is guilty of a
mation on the issue of marijuana regulation misdemeanor and may be fined not more than
for medical and nonmedical uses, regula- $1,000, sentenced to a county jail for up to six
tion of synthetic marijuana, and current law months, or both. For a second or subsequent
and legislation related to these substances in offense, a person is guilty of a Class I felony.
Wisconsin. Wisconsin law also contains certain prohibi-
tions regarding drug paraphernalia, as out-
CURRENT LAW lined in Subchapter VI, Drug Paraphernalia,
Federal law classifies controlled sub- in Chapter 961, Wisconsin Statutes. Any
stances into five different categories or violation of Chapter 961 can also result in a
Prepared by Jason Anderson, Legislative Analyst Reference Desk: (608) 266-0341
Web Site: www.legis.wisconsin.gov/lrb–2– LRB–14–WB–8
driver’s license suspension for not less than tients who use marijuana upon their physi-
six months and not more than five years. The cians’ advice are not penalized.
Wisconsin Controlled Substances Board has Opponents of medical marijuana argue
the authority to add, delete, or reschedule that there is no reliable evidence that marijua-
substances enumerated in the five schedules na has medical value since existing evidence
by administrative rule. is anecdotal, unscientific, or not replicated.
Table 1: Manufacturing, Distributing, or Some argue that marijuana is too dangerous to
Delivering the Controlled Substance THC and be used as a medicine, citing scientific studies
Possession of THC with Intent to Manufacture, that show marijuana as a harmful and addic-
Distribute, or Deliver tive drug. Opponents also believe that medi-
Amount Penalty cal marijuana is unnecessary because certain
200 grams or less, or 4 or fewer Class I felony FDA-approved drugs, including Marinol, a
plants containing THC prescription pill that contains a pharmaceuti-
Between 200 grams and 1,000 Class H felony cal formulation of THC, work better than mar-
grams, or between 4 plants and ijuana for certain conditions. Public safety is
20 plants containing THC
another argument used against the medical
Between 1,000 grams and 2,500 Class G felony
use of marijuana: specifically, marijuana will
grams, or between 20 plants and
50 plants containing THC lead to harder drug use and criminal activity.
Between 2,500 grams and 10,000 Class F felony
Opponents believe that legalizing the use of
grams, or between 50 plants and medical marijuana may lead to increased ac-
200 plants containing THC cess to the drug by young people and that the
More than 10,000 grams or more Class E felony push to legalize it is a wedge to loosen the na-
than 200 plants containing THC tion’s drug laws.
MEDICAL MARIJUANA LAWS IN
MEDICAL MARIJUANA OTHER STATES
The debate over legalizing medical mari- Twenty-three states and Washington,
juana has involved physicians, elected offi- DC, have enacted laws that legalize the medi-
cials, scientists, and the general public. cal use of marijuana (see Table 2). Most of
Proponents of the legal use of medical the early state medical marijuana laws in the
marijuana argue that there should be a dis- 1990s originated as voter initiatives or ballot
tinction between the medical and nonmedi- measures that resulted from direct action by
cal use of marijuana. Marijuana, they claim, voters, but in the 2000s the laws increasingly
is a safe and effective treatment for dozens of came from legislatures adopting their own
conditions, including cancer, AIDS, multiple legislative bills with no direct involvement
sclerosis, pain, migraines, glaucoma, and from the public.
epilepsy. Proponents support reclassifying The laws in the 23 states and DC vary, but
marijuana’s status as a Schedule I controlled they all allow certain individuals to cultivate
substance to a status that would allow for and use marijuana for medical purposes to
more comprehensive research to be done on some degree. The individuals must comply
its safety and efficacy in alleviating the symp- with the respective state’s medical marijuana
toms or effects of certain debilitating medi- law.
cal conditions or treatments. A distinction
between the medical and nonmedical use of
marijuana would ensure that physicians are
not deterred from discussing marijuana as a
treatment option with their patients, and pa-LRB–14–WB–8 –3–
Table 2: Twenty-Three States and DC Have In addition to the laws in the table above,
Enacted Laws That Legalize Medical Marijuana as of July 2014, two state legislatures, Ohio
Year and Pennsylvania, are still considering medi-
State Passed How Passed (Yes Vote) cal marijuana legislation this session, and
Alaska 1998 Ballot Measure 8 (58%) Florida voters will decide on Ballot Initiative
Arizona 2010 Proposition 203 #2, “Use of Marijuana for Certain Medical
(50.13%) Conditions,” in the November 2014 general
California 1996 Proposition 215 (56%) election.
Colorado 2000 Proposition 215 (56%) LEGISLATION IN WISCONSIN
Connecticut 2012 House Bill 5389 (96-51
House, 21-13 Senate) Unlike many states that have adopted
Delaware 2011 Senate Bill 17 (27-14 medical marijuana laws through direct vot-
House, 17-14 Senate) er initiatives, Wisconsin does not provide a
District of Columbia 2010 Amendment Act B18- statewide ballot process whereby voters have
622 (13-0 vote) the power to change law. In Wisconsin, ad-
Hawaii 2000 Senate Bill 862 (32-18 visory referenda can be placed on ballots, as
House; 13-12 Senate) they were in Dane County and River Falls,
Illinois 2013 House Bill 1 (61-57 but the results of the referenda are nonbind-
House, 35-21 Senate) ing. They are used only to measure opinions
Maine 1999 Ballot Question 2 (61%) on a policy issue and may not necessarily lead
Maryland 2014 House Bill 881 (125-11 to legislation.
House, 44-2 Senate)
Since 1997, several bills to legalize the
Massachusetts 2012 Ballot Question 3 (63%)
medical use of marijuana have been intro-
Michigan 2008 Proposal 1 (63%)
duced. None of the proposals have passed.
Minnesota 2014 Senate Bill 2470 (46-16 During the 2009-10 legislative session, two
Senate, 89-40 House)
bills related to the medical use of marijuana
Montana 2004 Initiative 148 (62%)
were introduced, Senate Bill 368 and an iden-
Nevada 2000 Ballot Question 9 (65%) tical companion bill, Assembly Bill 554, both
New Hampshire 2013 House Bill 573 (284-66 of which failed to pass out of committee.
House, 18-6 Senate)
The bills, if passed, would have estab-
New Jersey 2010 Senate Bill 119 (48-14
House; 25-13 Senate)
lished a medical necessity defense to mar-
ijuana-related prosecutions and forfeitures
New Mexico 2007 Senate Bill 523 (36-31
House; 32-3 Senate) for persons having or undergoing certain
New York 2014 Assembly Bill 6357
debilitating medical conditions or treat-
(117-13 Assembly, 49- ments, including cancer, glaucoma, multiple
10 Senate) sclerosis, AIDS or HIV, Crohn’s disease, and
Oregon 1998 Ballot Measure 67 post-traumatic stress disorder. To qualify
(55%) for this defense, a person would have to ob-
Rhode Island 2006 Senate Bill 0710 (52-10 tain a valid registry identification card from
House; 33-1 Senate) the Department of Health Services (DHS) or
Vermont 2004 Senate Bill 76 (22-7) HB a valid out-of-state registration card or have
645 (82-59) a written certification from a physician doc-
Washington 1998 Initiative 692 (59%) umenting the person’s debilitating medical
Source: ProCon.org, “Medical Marijuana: Pros condition or treatment. A qualifying patient
and Cons.” Accessed August 15, 2014. http:// would be able to invoke the defense if he or
medicalmarijuana.procon.org/view.resource. she acquires, possesses, cultivates, transports,
php?resourceID=000881.–4– LRB–14–WB–8
or uses marijuana for a medical condition or NONMEDICAL MARIJUANA
treatment, as long as the amount does not ex-
ceed the maximum authorized amount and Even before states began considering
only under certain circumstances. For exam- the debate over medical marijuana there
ple, patients could not drive or operate heavy was some disagreement on the proper way
machinery while under the influence of mari- to regulate the cultivation, sale, possession
juana, and they could not smoke it in schools, and/or use of marijuana for nonmedical pur-
parks, and many other public spaces. poses. Critics of marijuana’s designation as
a Schedule I controlled substance have com-
Qualifying patients would be allowed
plained that the “high potential for abuse”
to grow up to 12 marijuana plants or buy up
described in the Controlled Substances Act
to three ounces of marijuana from nonprofit
and readily apparent with the use of some
corporations, known as compassion cen-
controlled substances like heroin or cocaine
ters. DHS would be required to license and
is incompatible with the “high potential for
regulate these compassion centers, as well as
abuse” presented by the use of marijuana.
establish and administer a state registry for
The Drug Enforcement Agency responded to
medical users of marijuana.
that argument in its “Notice of denial of peti-
The bills from 2009 were introduced
tion to reschedule marijuana” in 2001, which
again in both houses during the 2011 and 2013
read in part:
sessions, but failed to pass in either session.
When it comes to a drug that is currently
However, during the 2013 session, listed in schedule I, if it is undisputed that
Assembly Bill 726, and a companion, Senate such drug has no currently accepted medi-
Bill 685, were introduced. The bills sought cal use in treatment in the United States
to have cannabidiol, an extract derived from and a lack of accepted safety for use un-
marijuana that has no intoxicating effects but der medical supervision, and it is further
undisputed that the drug has at least some
is used to treat certain medical conditions, cat- potential for abuse sufficient to warrant
egorized separately from other marijuana-re- control under the CSA, the drug must re-
lated substances so that it could be prescribed main in schedule I. In such circumstanc-
as medicine. AB-726 was introduced by es, placement of the drug in schedules II
Representatives Kahl and Krug on February through V would conflict with the CSA
4, 2014, then referred to the Assembly since such drug would not meet the crite-
rion of “a currently accepted medical use
Committee on Children and Families. The
in treatment in the United States.”
committee amended the original bill to re-
quire that only licensed physicians be per- In spite of the fact that it remains illegal
mitted to dispense cannabidiol, and that it be under federal law, two states have adopted
dispensed only after a physician has obtained laws that permit nonmedical marijuana, and
certain medical approvals from the federal others have considered the idea in recent
government for its use to treat a seizure dis- years.
order. The committee then passed the bill on NONMEDICAL MARIJUANA LAWS
to the full assembly where the amendment IN OTHER STATES
was adopted and the bill passed to the senate
on a voice vote. The bill passed the senate by Colorado and Washington are currently
unanimous roll call vote and was messaged to the only two states in the union that permit
the governor, who signed it into law on April the possession, use, cultivation, or distribu-
16, 2014, as 2013 Wisconsin Act 267. tion of marijuana for nonmedical reasons.
Marijuana remains illegal under federal law,
but Colorado and Washington have amend-
ed their state laws to decriminalize the drug.LRB–14–WB–8 –5–
The federal government still has the power to enjoy a significant increase in revenue re-
and authority to criminalize marijuana within sulting from the fees and taxes related to the
those states – federal agents could arrest culti- marijuana trade. Colorado reported approxi-
vators, wholesalers, retailers, or customers for mately $11 million in tax revenue resulting
violating federal drug laws, or the federal gov- from recreational marijuana sales in just the
ernment could sue Colorado and Washington, first six months of 2014.
arguing that federal law preempts state law Voters in Alaska and Oregon are sched-
in matters of drug control. In spite of those uled to vote on decriminalization of nonmedi-
options, the federal government’s Justice cal marijuana in their November 2014 general
Department and Drug Enforcement Agency elections.
have signaled that they will tentatively per-
mit states to proceed under their own mari- LEGISLATION IN WISCONSIN
juana laws for the time being. 2013 Assembly Bill 810, which sought
Colorado implemented its new marijua- to decriminalize marijuana for all purpos-
na laws on January 1, 2014, with Washington es, was introduced on February 24, 2014, by
following in July 2014. Consumer interest Representatives Sargent and Ohnstad. The
led to immense demand in both states, which bill was referred to the Assembly Committee
tested all aspects of their statutory schemes, on Criminal Justice but failed to report out.
from maintaining adequate supply from li- Assembly Bill 810 would have allowed
censed growers, to ensuring that minors Wisconsin residents age 21 or older to possess
could not purchase marijuana through retail a limited amount of marijuana, or marijuana-
storefronts. derived products, without penalty, and it
The laws in Colorado and Washington would have created a permit system for the
have some differences, but they share certain legal sale of marijuana by certain distributors.
features that are seen as indispensable. Most It would have also created a penalty for pos-
significantly, both states now permit personal session or attempted possession of marijuana
possession of a certain amount of marijuana by those under the age of 21. The bill was
without criminal penalty. Neither state per- the first legislative attempt to decriminalize
mits those under the age of 21 to cultivate, marijuana for nonmedical purposes since the
distribute, or possess the drug. Both states 1977 session. Because it failed to report out of
continue to criminalize the open consump- committee before the last floorperiod ended,
tion of marijuana, but the violations are civil, it is unlikely to be revived during the 2013
like speeding tickets, rather than criminal, so session, but the proposal may be introduced
they won’t result in arrest and risk of incar- again in the 2015 session.
ceration. Both states also continue to prohibit
drug paraphernalia to some degree. SYNTHETIC MARIJUANA
Colorado and Washington’s laws result Simultaneous to the debate in the states
in heavy involvement by the government in over the deregulation of marijuana for medi-
any commercial activity involving marijuana. cal and nonmedical purposes, there has been
The marijuana business is regulated at every a debate over the proper way to regulate syn-
level, from cultivation to wholesale to retail, thetic versions of marijuana.
with various permits, licenses, fees, and taxes For decades states have criminalized the
required depending on the circumstances. possession and distribution of counterfeit
In this way, Colorado and Washington are controlled substances (that is, noncontrolled
able to maintain some control over marijuana substances deliberately portrayed as legiti-
while still permitting legitimate business. As mate controlled substances by a seller or dis-
a result, Colorado and Washington expect–6– LRB–14–WB–8
tributor), on the theory that the potential for to product because the production of these
violence present in the sale of legitimate con- synthetics is not regulated in any way.
trolled substances is also present when only Forty-one states have banned synthetic
one party knows that the substance in ques- marijuana in its various forms and several
tion is not, in fact, an actual controlled sub- other states are poised to do so before the end
stance. There are also concerns that the true of their legislative sessions.
contents of counterfeit controlled substances
may be even more hazardous than the con- LEGISLATION IN WISCONSIN
trolled substances they imitate. Because synthetic controlled substances
It’s only in the last decade, however, that must be described in statutes using the chem-
states have had to consider the regulation of icals and processes that create them, the in-
controlled substances that are not counterfeit dividuals who manufacture such substances
imitations of actual controlled substances, but will make small changes to the procedure in
are instead synthetic versions of controlled an attempt to evade the specific descriptions
substances that cause identical or similar ef- in the law. Their end product may be sub-
fects to their nonsynthetic equivalents when stantially the same as the prohibited product,
consumed. and produce the same effects, but because
it’s chemically different, it does not fall un-
SYNTHETIC MARIJUANA LAWS IN der statutory prohibitions. This situation
OTHER STATES requires states to continue to amend their
Synthetic controlled substances are dif- statutes in an effort to keep up with the latest
ficult to regulate by law because they are renditions of synthetic controlled substances,
not easily described. Traditional controlled or to attempt to adopt a statute broad enough
substances are readily identifiable and can to encompass any synthetic, regardless of its
be specified by their popular names, and individual composition or creation.
also by their chemical compositions (e.g., the In Wisconsin, 2013 Senate Bill 325, which
plant marijuana or the chemical THC). But sought, in part, to regulate synthetic con-
synthetic controlled substances are not easily trolled substances, was introduced on October
identifiable because they are distinct from the 2, 2013, by Senators Harsdorf and Jauch, then
controlled substances they recreate, and their referred to the Senate Committee on Judiciary
active chemicals are different than the active and Labor. It reported out of committee days
chemicals in controlled substances, though later and was adopted by voice vote in the
they often cause the same effects in users as senate on November 5, 2013. It was then mes-
their traditional equivalents. sage to the assembly where it was referred to
In the case of synthetic marijuana, the the Assembly Committee on Rules. After re-
chemical composition of the active ingredi- porting out of committee it was adopted by
ents in the plant are recreated in a lab, infused the assembly, again by voice vote, on January
into a liquid solution, and then often sprayed 21, 2014, and was signed into law as 2013
on a green, leafy herb or plant in order to de- Wisconsin Act 351 on April 22, 2014.
liver the synthetic product in a way that can Act 351 describes synthetic controlled
be smoked to mimic the consumption of ac- substances using a number of different chem-
tual marijuana. Law enforcement warns that ical names and processes, ultimately prohibit-
the chemicals used, and even the leafy plant ing, in the case of synthetic marijuana:
that they’re sprayed on, can be incredibly tox- Any compound structurally derived from
ic, and effects can vary greatly from product 3-(1-naphthoyl)indole or 1H-indol-3-yl-(1-
naphthyl)methane by substitution at the
nitrogen atom of the indole ring by alkyl,LRB–14–WB–8 –7–
haloalkyl, cyanoalkyl, alkenyl, cycloal- the subject at: http://www.ncsl.org/research/
kylmethyl, cycloalkylethyl, 1-(N-methyl- health/state-medical-marijuana-laws.aspx.
2-piperidinyl)methyl, 2-(4-morpholinyl)
View a copy of 2009 Senate Bill 368 at:
ethyl, 1-(N-methyl-2-pyrrolidinyl)meth-
yl, 1-(N-methyl-3-morpholinyl)methyl, https://docs.legis.wisconsin.gov/2009/related/
or (tetrahydropyran-4-yl)methyl group, proposals/sb368.pdf.
whether or not further substituted in the View a copy of 2009 Assembly Bill 554 at:
indole ring to any extent, whether or not https://docs.legis.wisconsin.gov/2009/related/
substituted in the naphthyl ring to any ex- proposals/ab554.pdf.
tent.
View a copy of 2013 Wisconsin Act 267 at:
Penalties for the manufacture, distribu-
https://docs.legis.wisconsin.gov/document/
tion, or delivery of synthetic marijuana are
acts/2013/267.pdf.
identical to the penalties for manufacture,
distribution, and delivery of actual marijua- Nonmedical Marijuana
na listed in Table 1, but they specify only the
weight of the substance, rather than consider- For more information on medical and
ing the number of plants involved. nonmedical marijuana laws in other states,
see the Office of National Drug Control
FOR MORE INFORMATION Policy’s page on the subject at: http://www.
whitehouse.gov/ondcp/state-laws-related-to-
Drug Laws marijuana.
View a copy of Washington’s Initiative
For more information on drug laws in
502 at: http://sos.wa.gov/_assets/elections/ini-
Wisconsin, see the Wisconsin Legislative
tiatives/i502.pdf.
Council Legal Memorandum, Drug Laws in
Wisconsin: Offenses and Penalties Under Ch. 961, View a copy of Colorado’s Amendment
Stats. [The Uniform Controlled Substances Act], 64 at: http://www.fcgov.com/mmj/pdf/
at: http://www.legis.state.wi.us/lc/publica- amendment64.pdf.
tions/lm/lm_2003_05.pdf. View a copy of 2013 Assembly Bill 810 at:
For more information on the Federal https://docs.legis.wisconsin.gov/2013/related/
Controlled Substances Act, see: http://www. proposals/ab810.pdf.
law.cornell.edu/uscode/text/21/chapter-13/ Synthetic Marijuana
subchapter-I.
View Chapter 961, Wisconsin Statutes, View a copy of 2013 Wisconsin Act 351 at:
Uniform Controlled Substances Act at: http:// https://docs.legis.wisconsin.gov/document/
www.legis.state.wi.us/statutes/Stat0961.pdf. acts/2013/351.pdf.
For more information on synthetic mar-
Medical Marijuana ijuana laws in the states see the National
For more resources on the medical use Conference of State Legislatures’ page on the
of marijuana, see the Wisconsin Legislative subject at: http://www.ncsl.org/research/civil-
Reference Bureau’s Tap the Power, “Medical and-criminal-justice/synthetic-cannabinoids-
Marijuana,” at: http://legis.wisconsin.gov/lrb/ enactments.aspx.
pubs/ttp/ttp-01-2010.pdf.
For more information on medical mari-
juana laws in other states, see the National
Conference of State Legislatures’ page onYou can also read
