How to (Legally) Grow Marijuana in Wisconsin

July 25, 2017

For starters, let’s be clear:  No one in Wisconsin is presently legally cleared to grow marijuana.  While there are state-based legislative initiatives afoot, there have been no amendments of state laws to establish marijuana production or distribution in Wisconsin.  Moreover, those with an interest in reform of state marijuana laws here and elsewhere understandably keep a wary eye cast on actions of the federal government, which has kept marijuana illegal as a Schedule I drug.  Actors within the current administration, most notably Attorney General Sessions, have of late suggested a certain lack of tolerance for those states which have legalized either medical or adult (recreational) use of marijuana.  Interestingly, it is the federal government that has recently established the one actual exception to allow for the growing of marijuana.

Last August, the Drug Enforcement Administration (DEA) issued a policy statement recognizing there is a growing interest in researching the efficacy of marijuana for treating certain medical conditions.  It noted that it, along with the Food and Drug Administration (FDA) and the National Institutes of Health (NIH), fully supports expanding research into the potential utility of marijuana and its chemical constituents.  There was one major problem, though: For the entire period of nearly 50 years that research into marijuana was being allowed by the federal government, there was one single grower in the entire country (at the University of Mississippi) authorized to cultivate marijuana for use in such research projects.  In simple economic terms, the DEA has conceded that demand has outstripped supply.

To address this issue and further the goals of promoting legitimate research, the DEA has adopted a new policy designed to increase the number of entities registered under the Controlled Substances Act (CSA) to supply marijuana to qualified researchers in the United States.  It has articulated broad guidelines for how it will evaluate applicants for such registration.  These guidelines focus on assuring that growers are furthering research causes as opposed to purely commercial interests, are in compliance with the CSA, and that its program comports with the major international drug control treaty.

Under 21 U.S.C § 822(a)(1), anyone seeking to manufacture or distribute any controlled substance must apply for DEA registration.  Anyone seeking specifically to grow marijuana for research purposes must apply under 21 U.S.C. § 823(a).  In order for the DEA to grant a registration, two conditions must be satisfied.  First, the registration must be considered to be in the public interest.  Second, the registration must be in compliance with the United States’ obligations under an international treaty known as the Single Convention on Narcotic Drugs (the Single Convention).  The DEA has published some of its general considerations on how applications for registration will be judged.

The DEA has noted that it will not be in a position to approve an unlimited number of applications.  Under § 823(a)(1) the DEA is to register only the number of suppliers necessary to produce an adequate and uninterrupted supply of the product under consideration for legitimate medical, scientific research purposes.  The DEA has noted it has a longstanding concern when dealing with highly scheduled substances that having fewer authorized registrants decreases the likelihood of diversion, which is another important policy factor that will guide the DEA.  Observers do not anticipate a wide-spread granting of certifications.

In determining whether a particular proposed registration would serve the public interest, the DEA will consider a number of factors.  These include whether the applicant has previous experience handling controlled substances in a lawful manner.  It will also consider whether the applicant has previously engaged in any illegal activity in violation of the CSA.  While this factor sounds as though it would be a fairly obvious requirement, it should be noted that it may put interested growers in states like Wisconsin at a competitive advantage over individuals already involved in the medical or recreational cultivation of marijuana in states which have amended their laws to allow such activity.  Specifically, while the federal government has, to date, looked the other way at these producers, their activity is clearly in violation of the CSA.  The irony-tinged fact is that while these growers in other states have the greatest experience with growing “medical marijuana,” they will face difficulty in becoming registered under this program to grow marijuana for medical research because their activities are in violation of the CSA.  The DEA has indicated that, while such past illegal activity does not automatically disqualify an applicant, it will weigh heavily against granting the registration.

Additionally, as noted above, any registration has to be consistent with the terms of the Single Convention which poses other additional requirements.  Among the most salient of these requirements is that the government must agree to take physical possession of all cannabis crops from the cultivators and retain the exclusive right of importing, exporting, and maintenance of cannabis stocks.  Historically, this meant that growers (or more correctly the single authorized grower) operated under contract with, and therefore was an extension of, the National Institute for Drug Abuse (NIDA).  The DEA has determined that it can remain in compliance with the Single Convention as long as registrant growers agree that they can distribute marijuana with prior written approval from the DEA.  This would allow growers to operate more independently and interact directly with the ultimate purchasers.

The last unanswered piece of this puzzle is what the state’s reaction would be.  As marijuana cultivation remains illegal under state law, there is a very interesting question of how the state would react if a Wisconsin resident was granted registration under the DEA program.  One would think that because the federal government has preempted the registration and production of scheduled substances for academic research that the state could not prohibit the practice.  That, of course does not mean the state (not to mention local governments) could not try to prohibit the activity altogether or, more likely, impose additional regulations beyond those which would be in place.  The law is developing slowly around states’ rights issues when the state wants to promote marijuana growing and the federal government seeks to prohibit it; it may prove the great irony that the roles could be reversed as this program becomes more established across the country.

To date, we are aware of that individuals and entities have applied for registration, but none who have that status granted as of yet.

For more information about "How to (Legally) Grow Marijuana in Wisconsin," contact Guy J. DuBeau at gdubeau@axley.com or 608.283.6704.