Wisconsin Map Wausau

LRB-2858/1: relating to: medical cannabis, granting rule-making authority, and providing a penalty.

Below is the co-sponsorship memo and attached is the introduced bill.

DATE: January 8, 2023                

TO: All Legislators

FROM: Rep. Patrick Snyder, Rep. Jon Plumer, Rep. John Macco, Rep. Clint Moses, Rep. Donna Rozar, Rep. Michael Schraa, Rep. Shea Sortwell, and Rep. Robin Vos

RE: Co-Sponsorship of LRB-2858/1: relating to: medical cannabis, granting rule-making authority, and providing a penalty.

SHORT DEADLINE:  Friday, January 12, 2024 at 4:00 P.M.  

LRB-2858/1 creates an innovative medical cannabis program in Wisconsin that ensures patient access to treatment while safely and effectively regulating distribution of medicinal cannabis products. Many of us have seen loved ones struggle through serious illness and try and fail to treat their pain. We have seen the disastrous effects that some experience after using opioids for long term pain relief and many are looking for alternative treatment courses for themselves or their loved ones. Wisconsinites who have discussed the positive benefits of using cannabis for medicinal purposes with their primary care physicians are currently forced to endure pain and physical agony, traffic drugs into Wisconsin and become criminals, or be held hostage by the FDA approved pain killers that may alleviate their pain, but come with a host of side effects that diminish quality of life.   

Currently, 38 states allow the use of medical cannabis. The types of programs offered by different states as is vast as the nation itself. But we felt it was important to craft a new type of medical cannabis program that works for Wisconsin by engaging in an extensive analysis of other states’ medical cannabis programs while discarding those policies that have led to widespread abuse of medical programs. That is why this legislation creates the first state-run medical cannabis dispensaries.

Under the legislation, all prescribers who have a bona-fide relationship with a patient would be able to certify if a patient has a qualifying condition (prescribers are not mandated to make certifications if they choose not to for whatever reason). Qualifying conditions include: cancer, HIV or AIDS, seizures and epilepsy, post-traumatic stress disorder, Alzheimer’s disease, glaucoma, severe chronic pain (tightly defined in the legislation), severe chronic nausea, severe muscle spasms, multiple sclerosis, amyotrophic lateral sclerosis, chronic motor or vocal tic disorder, Tourette syndrome, inflammatory bowel disease, any terminal illness with a probable life expectancy of less than one year. Additional conditions could be added under future legislation.

After receiving a certification, the patient would register with the Office of Medical Cannabis Regulation (OMCR) within the Department of Health Services (DHS). The OMCR would issues patients and caregivers (up to 3 chosen by each patient) “registry identification cards”. These cards would allow the patient or caregiver to go to one of 5 medical cannabis dispensaries in the State where a licensed pharmacist will consult on dosage and dispense medical cannabis to a patient or caregiver.

The bill allows medical cannabis concentrates, oils, tinctures, edibles, pills, topical forms, gels, creams, vapors, patches, liquids, or forms administered by a nebulizer. The bill does not allow smokeable cannabis. All forms of cannabis must come in child/tamper proof containers.

We believe this tightly regulated program, which will be the first of its kind, will provide important relief to those suffering, while ensuring the least opportunity for abuse. We hope you can join us in supporting this legislation.

For additional details regarding the growing, processing, and other aspects of the program please consult the bill or reach out to my office.

If you would like to co-sponsor this bill, please reply to this email or contact the office of Rep. Snyder by no later than Friday, January 12, 2024 at 4:00 P.M.

Analysis by the Legislative Reference Bureau 

This bill creates a program that allows a registered patient to possess and use medical cannabis products; allows designated caregivers to possess medical cannabis products on behalf of registered patients; licenses and regulates medical cannabis growers, processors, and testing laboratories; and directs the state to establish state-owned dispensaries to sell medical cannabis products.  No person may possess, sell, transfer, or transport cannabis or medical cannabis products unless the person is licensed or registered as provided in the bill.  Under the bill, “medical cannabis products” includes products in the form of concentrates, oils, tinctures, edibles, pills, topical forms, gels, creams, vapors, patches, liquids, and forms administered by a nebulizer but excludes cannabis in a form that can be smoked.  Major provisions of the bill are summarized as follows.

Office of Medical Cannabis Regulation

The bill creates the Office of Medical Cannabis Regulation to establish and manage the patient and caregiver registry (described below) and to oversee the dispensing of medical cannabis products.  The office is attached to the Department of Health Services.  The head of the office is a director who is appointed by the governor and confirmed by the senate to serve at the pleasure of the governor.

DATCP duties

The bill requires the Department of Agriculture, Trade and Consumer Protection to oversee and regulate the growing of cannabis and the processing and testing of medical cannabis products.  The bill requires DATCP to promulgate rules establishing safety and security requirements for the premises of growers, processors, and laboratories that handle cannabis or medical cannabis products.

Cannabis grower licenses

The bill requires any person operating as a cannabis grower to obtain a license from DATCP.  To obtain a cannabis grower license, the applicant or at least 80 percent of the principal officers or board members of the applicant must be residents of this state.  Further, neither the applicant nor any principal officer or board member of the applicant may have been convicted of any crime, unless at least 10 years have passed since the completion of any sentence imposed for the crime, including any period of incarceration, parole, or extended supervision, and any period of probation imposed for the crime.

Under the bill, a licensed cannabis grower may plant, grow, cultivate, and harvest cannabis; transport cannabis to or from any licensed grower, processor, or laboratory; transfer or sell cannabis to a processor that is contracted with and licensed by DATCP; and engage in any related activities that are necessary for the operation, such as possessing and storing cannabis.  The applicant must also submit to an inspection by DATCP of the applicant’s premises, and the premises must meet all of the requirements established by DATCP by rule.  A licensed cannabis grower may not plant, grow, cultivate, or harvest cannabis for personal, family, or household use. A licensed cannabis grower may operate only within an enclosed, locked facility.

                The bill requires DATCP to determine and recalculate, every year, the license fee for cannabis growers.  DATCP must propose any fee adjustments to the Joint Committee on Finance, which may object to any fee changes.  The initial fee for cannabis grower licenses until DATCP redetermines the license fee for cannabis growers as provided in the bill is $10,000.

Medical cannabis processor licenses

                The bill requires any person who processes cannabis into medical cannabis products to obtain a license from DATCP and to be under either a valid contract with DATCP or a valid subcontract with the party that is contracted with DATCP.  The bill requires DATCP to obtain and review proposals from entities in this state to process medical cannabis products using DATCP’s request-for-proposal procedures. The bill requires DATCP to license and contract with only one processor until there are at least 50,000 patients included in the patient and caregiver registry, after which DATCP may license and contract with as many processors as necessary to process an adequate supply of medical cannabis products to meet the demand of patients in this state.  The bill allows the processor that is contracted with DATCP to contract with subcontractors to provide its services, but requires each subcontractor to obtain a separate license from DATCP.

To obtain a medical cannabis processor license, the applicant or at least 80 percent of the principal officers or board members of the applicant must be residents of this state.  Further, neither the applicant nor any principal officer or board member of the applicant may have been convicted of any crime, unless at least 10 years have passed since the completion of any sentence imposed for the crime, including any period of incarceration, parole, or extended supervision, and any period of probation imposed for the crime.  The applicant must also submit to an inspection by DATCP of the applicant’s premises, and the premises must meet all of the requirements established by DATCP by rule.

A licensed processor may obtain cannabis from a licensed grower; process cannabis into medical cannabis products; package and label medical cannabis products; transport cannabis or medical cannabis products to or from any licensee; and transfer, transport, or sell medical cannabis products to dispensaries operated by the Office of Medical Cannabis Regulation.  A licensed processor may operate only within an enclosed, locked facility.  The bill also prohibits processors from advertising their services.

Before transferring or transporting medical cannabis products to a dispensary, a licensed processor must provide samples of each lot of medical cannabis product that it processes to a laboratory licensed by DATCP and receive certified test results of those samples showing the tetrahydrocannabinol (THC) content of the medical cannabis products and showing that the medical cannabis products do not contain unsafe levels of any molds, pesticides, heavy metals, or any other contaminant for which DATCP requires the medical cannabis products to be tested.  Further, before selling or transferring medical cannabis products to a dispensary, a licensed processor must package the medical cannabis products in child-resistant packaging and attach a label to the medical cannabis products that identifies the THC content of the medical cannabis products and that includes any other information that DATCP requires.  Under the bill, no labeling or packaging of medical cannabis may include any claim that the consumption or use of medical cannabis may cure, mitigate, treat, or prevent any disease or medical condition.

                The bill requires DATCP to determine and recalculate, every year, the license fee and annual renewal fee for medical cannabis processors.  DATCP must propose any fee adjustments to JCF, which may object to any fee changes.  The initial fee, and renewal fee, for medical cannabis processor licenses until DATCP redetermines these fees is $50,000.

Medical cannabis testing laboratory licenses

The bill requires any person who conducts testing on medical cannabis products to obtain a license from DATCP and to be under a valid contract with DATCP.  To obtain a medical cannabis testing laboratory license, the applicant or at least 80 percent of the principal officers or board members of the applicant must be residents of this state.  Further, neither the applicant nor any principal officer or board member of the applicant may have been convicted of any crime, unless at least 10 years have passed since the completion of any sentence imposed for the crime, including any period of incarceration, parole, or extended supervision, and any period of probation imposed for the crime.  The applicant must also submit to an inspection by DATCP of the applicant’s premises, and the premises must meet all of the requirements established by DATCP by rule.

A licensed medical cannabis testing laboratory may obtain medical cannabis products from a licensed processor and test medical cannabis products.  When testing medical cannabis products, a laboratory must test the products for THC content and the presence of molds, pesticides, heavy metals, and other contaminants identified by DATCP by rule.  A licensed medical cannabis testing laboratory may operate only within an enclosed, locked facility.  The bill also prohibits laboratories from advertising their services.

The bill requires DATCP to determine and recalculate, every year, the license fee and annual renewal fee for medical cannabis testing laboratories.  DATCP must propose any fee adjustments to JCF, which may object to any fee changes.  The initial fee, and renewal fee, for medical cannabis testing laboratory licenses until DATCP redetermines these fees is $5,000.

Confidentiality requirements for grower, processor, and laboratory licensees and applicants

The bill requires DATCP to keep certain information confidential, including information relating to the locations of proposed or existing cannabis growers, medical cannabis processors, and medical cannabis testing laboratories; personal information about grower, processor, and laboratory licensees or applicants, other than a licensee’s or applicant’s name; information obtained as a result of any criminal history search; and any other information that could create a security risk if disclosed.

DATCP enforcement and penalties

The bill authorizes DATCP to conduct investigations, hold hearings, and make findings as to whether a person has violated any provisions of this bill relating to the regulation of cannabis growing, processing, and testing. Under the bill, if DATCP determines that a licensed cannabis grower, medical cannabis processor, or medical cannabis testing laboratory has negligently violated any applicable requirements, DATCP may establish a plan to correct the violation.  That plan must include a reasonable date by which the licensee must correct the negligent violation and a requirement that the licensee periodically report to DATCP on the licensee’s compliance with the plan for at least the following two years.

The bill allows DATCP to suspend or revoke the license of any licensee that violates any applicable requirement under the bill.  Under the bill, a person who violates any applicable requirement may be required to forfeit between $200 and $5,000 or, for an offense committed within five years of an offense for which a penalty has already been assessed, between $400 and $10,000.  In addition, under the bill, any person who violates any applicable requirements by fraud must be fined between $2,000 and $10,000.

Patient and caregiver registry

The bill requires the Office of Medical Cannabis Regulation (the office) to create and maintain a registry that includes all patients and caregivers authorized to purchase and possess medical cannabis products.  To be included on the registry as a patient, an individual must be a permanent resident of this state; must not be on parole, probation, or extended supervision; and must have written confirmation from a prescriber that the prescriber established a bona fide relationship with the patient, met with the patient in person, and determined to a reasonable degree of medical certainty that the patient has a medical condition that qualifies the patient for inclusion on the patient and caregiver registry.  Conditions that qualify an individual for inclusion on the patient and caregiver registry include cancer, seizures or epilepsy, glaucoma, severe chronic pain, severe muscle spasms, severe chronic nausea, multiple sclerosis, inflammatory bowel disease, and any terminal illness with a probable life expectancy of less than one year.  Written confirmation from a prescriber that a patient has a medical condition that qualifies the patient for inclusion on the patient and caregiver registry is valid for two years from the day that the prescriber confirms that the patient has the medical condition, at which point the patient must obtain a renewed confirmation that the patient continues to have a medical condition that qualifies the patient for further inclusion on the registry.

A patient must be 18 years of age or older.  If an individual is under the age of 18, then the individual must provide written consent from all of the individual’s parents or, if legal custody of the individual has been awarded by a court, all person’s awarded legal custody of the individual to be included on the registry.  The fee for inclusion on the patient and caregiver registry as a patient is $100 per year.  If the patient qualifies for a hardship exception, as determined by the office, the fee for inclusion on the patient and caregiver registry as a patient is instead $50 per year. The office must issue a registry identification card to every patient and caregiver who is included on the registry.

A patient included on the patient and caregiver registry may designate up to three caregivers who may purchase and possess medical cannabis products on the patient’s behalf.  When designating caregivers for a patient, the patient must submit a complete list of caregivers with the names and addresses of each caregiver and an affirmation that each caregiver has consented to act as the patient’s caregiver.  No person may act as a caregiver unless the person is 21 years of age or older, is not on parole, probation, or extended supervision, and is a permanent resident of the state. If the patient is under the age of 18, the office must designate the patient’s parents or guardians as the patient’s caregivers, and the patient’s parents or guardians may designate one additional caregiver.  No person may act as a caregiver for more than five patients, unless the individual is an employee of a residential care facility.  The bill directs the office to establish reasonable limits on the number of patients for which an employee of a residential care facility may be designated as a caregiver. The bill requires the office to conduct a background check of every caregiver before adding the caregiver to the registry.  The bill provides that any individual who is a caregiver may revoke his or her consent to act as a patient’s caregiver at any time and remove himself or herself from the registry by submitting a written statement to the office to that effect.

A patient who holds a valid registry identification card may use medical cannabis products and possess medical cannabis products at the patient’s residence, between the dispensary from which the products were purchased and the patient’s residence, and between the patient’s residences if the patient has more than one residence.  A caregiver who holds a valid registry identification card may possess medical cannabis products at the patient’s residence, between the dispensary from which the products were purchased and the caregiver’s or the caregiver’s patient’s residence, and between the caregiver’s and the caregiver’s patient’s residence. Under the bill, a patient’s residence includes any temporary accommodation if the patient intends to or does stay at the temporary accommodation overnight.

Under the bill, the office must remove a patient from the patient and caregiver registry under certain conditions, including that the patient has not paid the annual fee; the patient fails to submit written confirmation that the patient continues to have a condition that qualifies the patient for inclusion on the registry prior to the expiration of the previous written confirmation; the patient has been convicted of a violation of certain controlled substances laws; the patient has been convicted of any felony; the patient has violated any provision of the medical cannabis laws or regulations by fraud; the patient is no longer a resident of the state; or the patient voluntarily requests to be removed from the patient and caregiver registry.  If a patient is removed from the patient and caregiver registry, the office must remove any caregivers designated for that patient from the patient and caregiver registry unless the caregiver is a caregiver for another patient who is on the patient and caregiver registry.

Medical cannabis dispensaries

Under the bill, no person other than a dispensary operated by the Office of Medical Cannabis Regulation may sell or transfer medical cannabis products to patients and caregivers.  The bill directs the office to establish a total of five dispensaries in the state, with one dispensary in each of the five regions that DHS has established for data analysis and communication purposes.  Each dispensary may obtain packaged and labeled medical cannabis products from licensed processors and dispense medical cannabis products to patients and caregivers who present photo identification and a valid registry identification card.  The bill directs the office to set the price of medical cannabis products offered for sale at dispensaries. The office may set the price of medical cannabis products only at a level sufficient to recoup product and operational costs.

Before a dispensary may dispense medical cannabis products to a patient or a patient’s caregiver, the dispensary must direct a pharmacist who is employed by the dispensary to consult with the patient or the patient’s caregiver and review the patient’s records under the Prescription Drug Monitoring Program.  After a consultation, if the patient has never been dispensed medical cannabis products in this state, the pharmacist must recommend a daily dosage for the patient and record the recommended daily dosage in the patient and caregiver registry.  A patient who has never been dispensed medical cannabis products in this state may be dispensed not more than a 30-day supply of medical cannabis products.  After receiving an initial 30-day supply, a dispensary may dispense not more than a 90-day supply of medical cannabis products.  If the patient has previously been recommended a daily dosage, the consulting pharmacist may update the patient’s recommended daily dosage.  If a pharmacist recommends a new daily dosage for a patient, the pharmacist must record the updated recommendation in the patient and caregiver registry.  No dispensary may dispense any medical cannabis products to a patient or caregiver for a patient who, based on the amount of medical cannabis products previously dispensed and the patient’s recommended daily dosage, has or should have a supply of medical cannabis products for more than seven days.

The bill prohibits dispensaries or dispensary employees from claiming that medical cannabis may cure, mitigate, treat, or prevent any disease or medical condition.  The bill also prohibits dispensaries from advertising their services.

Prescription drug monitoring program

Current law requires the Controlled Substances Board to establish a Prescription Drug Monitoring Program (PDMP) that requires pharmacies and health care practitioners to generate records documenting the dispensing of monitored prescription drugs.  Records from the PDMP may be disclosed to persons specified under current law or by the board by rule.  Current law also requires that a patient’s records under the PDMP be reviewed before the practitioner issues a prescription order for the patient.

The bill requires records to be generated for the PDMP documenting the dispensing of medical cannabis products and requires the review of a patient’s PDMP records by a dispensary pharmacist before a medical cannabis product is dispensed to a qualifying patient.  The bill also adds medical cannabis to various other PDMP provisions.

Criminal provisions

The bill decriminalizes the possession, manufacture, distribution, and delivery of medical cannabis products, if that possession, manufacture, distribution, or delivery is done in compliance with the medical cannabis program established under the bill.

Under current law, it is illegal to possess, manufacture, distribute, or deliver marijuana.  The bill authorizes the possession, distribution, or delivery of medical cannabis products by a registered patient or his or her caregiver if 1) the possession, distribution, or delivery of medical cannabis products is done to facilitate a registered patient’s medical use of the product; 2) the medical cannabis products are obtained from a person who is authorized to distribute or deliver medical cannabis products under the medical cannabis program; 3) the medical cannabis product is in a form authorized under the medical cannabis program and does not exceed the amount specified for the registered patient; 4) the person is carrying a registry identification card; and 5) the possession of the medical cannabis product is at the residence of a registered patient or while being transported to the residence of a registered patient.  The bill authorizes a licensee or employee of a licensee to possess, manufacture, distribute, or deliver cannabis or medical cannabis products if it is done in the usual course of business or employment.

Current law also prohibits the possession, manufacture, delivery, or advertising of drug paraphernalia.  The bill also excludes from the definition of drug paraphernalia any object used, designed for use, or primarily intended for use by a registered patient in compliance with the medical cannabis program established under the bill.

The bill establishes a civil penalty of $25 if a registered patient or his or her caregiver violates either the requirement to carry the registry identification card or possess the medical cannabis products only at or in transport to the qualifying patient’s residence.

The bill also clarifies that a financial institution, and a person acting on behalf of or providing services to a financial institution, does not violate the state’s money laundering statute solely by receiving deposits, extending credit, conducting funds transfers, transporting cash or other financial instruments, or providing other financial services to a licensed cannabis grower, processor, or laboratory or a licensed medical cannabis dispensary.

Child placement and custody

Under the bill a court may not consider the lawful use or possession of cannabis or medical cannabis products in determining custody or placement of a child under the Children’s Code or under an action affecting the family, except in cases in which a child has access to the cannabis.  The bill specifies that a court may consider the unlawful use or possession of cannabis in determining custody and placement of a child.

Fair employment law

Under the current fair employment law, an employer may not refuse to hire or employ, bar or terminate from employment, or discriminate against any individual in promotion or compensation or in terms, conditions, or privileges of employment because the individual has a disability.  Such discrimination against an individual with a disability includes refusing to reasonably accommodate an employee’s or prospective employee’s disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise, or business.  Also under the fair employment law, an employer may not refuse to hire or employ, bar or terminate from employment, or discriminate against any individual in promotion or compensation or in terms, conditions, or privileges of employment because of the individual’s use or nonuse of lawful products off the employer’s premises during nonworking hours.

The Department of Workforce Development enforces the fair employment law, may receive and investigate complaints charging discrimination or discriminatory practices, and may, if an employer is found to have engaged in discrimination, order such action by the respondent as will effectuate the purpose of the fair employment law, including awarding back pay.  Decisions of DWD hearing examiners made under the fair employment law are subject to further review by the Labor and Industry Review Commission and a court.

The bill provides that the fair employment law does not apply to, and therefore does not protect against discrimination or discriminatory practices, any act of an employer based on an individual’s use of medical cannabis products, the individual’s other use of cannabis, or the individual testing positive for the presence of tetrahydrocannabinols.  The bill further explicitly provides that the fair employment law does not require an employer to permit, accommodate, or allow the medical use of a medical cannabis product, or to modify any job or working conditions of any employee who engages in the medical use of medical cannabis products or who for any reason seeks to engage in the medical use of medical cannabis products.  The bill also further provides that the fair employment law does not prohibit an employer from refusing to hire, terminating, discharging, disciplining, or otherwise discriminating against an individual with respect to hiring, discharging, tenure, promotion, or compensation, or in terms, conditions, or privileges of employment as a result, in whole or in part, of the individual’s medical use of medical cannabis products, the individual’s other use of cannabis, or the individual testing positive for the presence of tetrahydrocannabinols, regardless of any impairment or lack of impairment resulting therefrom.

Unemployment insurance; worker’s compensation

Currently, an individual whose work is terminated by an employer for misconduct by the employee connected with the employee’s work is ineligible to receive unemployment insurance (UI) benefits until the individual satisfies certain conditions.  In addition, the wages paid to the individual by that employer are excluded from the employee’s base period wages for purposes of calculating the individual’s entitlement to UI benefits.  “Misconduct,” for purposes of these provisions, is defined specifically as including a violation by an employee of an employer’s reasonable written policy concerning the use of a controlled substance if the employee 1) had knowledge of the policy and 2) admitted to the use of a controlled substance, refused to take a test, or tested positive for the use of a controlled substance in a test used by the employer in accordance with a testing methodology approved by DWD.

Also under current law, an employer is not liable for temporary disability benefits under the worker’s compensation law during an employee’s healing period if the employee is suspended or terminated for misconduct as defined above.

The bill retains these provisions regarding misconduct and further provides that such a reasonable written policy may include a drug-free workplace policy and may include a policy that includes testing for the presence of tetrahydrocannabinols.

Open housing law

Under the current open housing law and other laws, it is unlawful for any person to engage in certain forms of discrimination in housing based upon certain characteristics of an individual such as sex, race, color, sexual orientation, disability, religion, national origin, marital status, and family status.  The open housing law protects against evictions and other actions that are made on the aforementioned bases.  The open housing law is administered by DWD and allows for enforcement through civil actions brought by or on behalf of aggrieved persons and, in cases of alleged patterns or practices of discrimination, by the attorney general.

The bill adds use of medical cannabis products to the list of characteristics on which it is unlawful to discriminate in housing.

Limitation of local regulation

The bill prohibits political subdivisions from 1) regulating a medical cannabis grower, processor, testing laboratory, or dispensary; 2) regulating the lawful recommendation or delivery of medical cannabis products; 3) regulating the lawful use or possession of medical cannabis products; and 4) restricting in a zoning ordinance the location or operation of medical cannabis growing, processing, testing, or dispensing.

Sales tax exemption

The bill creates a sales tax exemption for the sale of a medical cannabis product sold by a dispensary to a person who holds a valid registry identification card.

Because this bill may increase or decrease, directly or indirectly, the cost of the development, construction, financing, purchasing, sale, ownership, or availability of housing in this state, the Department of Administration, as required by law, will prepare a report to be printed as an appendix to this bill.

Because this bill relates to an exemption from state or local taxes, it may be referred to the Joint Survey Committee on Tax Exemptions for a report to be printed as an appendix to the bill.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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