Medical Marijuana in Wisconsin – What it Might Look Like

April 20, 2017

With Governor Walker’s recent signing of the Compassionate Cannabis Care Act loosening the rules around CBD oil – a non-psychoactive marijuana derivative – some are turning their attention to the prospect of medical marijuana becoming a reality in Wisconsin.  Though most Capitol watchers still place that prospect as a distant pipe dream (apologies to all for that one), societal forces are moving in that direction.  Over half the states in the country have some form of cannabis legalization for either medicinal or adult recreational use.  Proponents point to a recent Marquette University Law School poll showing nearly 6-out-of-10 Wisconsin residents favor legalized recreational adult use and 8-out-of-10 favoring medical legalization.  Presently working its way through both the Wisconsin senate and assembly is a Medical Cannabis Advisory Referendum, which seeks to put the issue before voters in early 2018.

Initiatives such as this around the country have revealed a rather profound, yet obvious, practical problem:  how does a state create an entire industry from scratch – one that has only existed in the black market but is now intended to be placed squarely within the ambit of the health care industry no less?  The manner in which states address these fundamental issues affects providers and patients, law enforcement and the courts, regulators and municipalities, not to mention an entire potential infrastructure of growers, quality testers, distributors and retailers.  There is proposed legislation currently existing, Senate Bill 38/Assembly Bill 75, which attempts to answer these questions.  While no one is currently predicting that this effort will even get out of committee, much less pass into law any time soon, it is undeniably a serious effort to set a course for what legalization of medical marijuana could look like in Wisconsin.  Here is some basic Q&A of what is being proposed.

Does the proposed law make medical marijuana “legal?” Not exactly.  There are still federal prohibitions on marijuana so it is more accurate to say that the law makes marijuana not illegal under state law, as long as certain conditions are met.  The law leaves intact the current state prohibitions on marijuana, but creates an exception to arrest and prosecution for individuals who are qualified patients or a member of the patient’s care team for the possession, transportation and cultivation of small amounts of marijuana and accompanying paraphernalia.  Qualified patients are, of course, allowed to use marijuana in all its forms.

To what medical conditions would the law apply?  The law would apply to individuals with a debilitating medical condition or treatment.  Specifically included (among others) in the statutory list are cancer, AIDS, HIV, Alzheimer’s, ALS (Lou Gehrig’s Disease), PTSD, and seizure disorders, as well as chronic pain disorders.  This list is not exhaustive and, additionally, any person would be able to petition the Department of Health Services for an expansion to the list.

Would a doctor write a prescription for medical marijuana?  Again, not exactly.  For starters, prescriptions only apply to federally authorized drugs. As marijuana remains a Schedule I drug, and illegal under federal law, it would never be an actual “prescription.”  In lieu of a prescription, the provider would have to author a “written certification.”  The law is not limited to physicians specifically.  It appears as drafted so that other healthcare providers, such as nurse practitioners and physician assistants, would be able to author written certifications.  There is a requirement that the patient and the practitioner have a bona fide practitioner-patient relationship.  The certification statement would have to indicate that, in the practitioner’s professional opinion, the person has a debilitating medical condition or treatment, that the benefits of using medical marijuana outweigh any risks, that the opinion was arrived at in the course of a bona fide relationship and that the certification is either signed or placed in the patient’s medical records.

Once a patient receives certification from their provider, would they be able to purchase marijuana?  That is a little unclear as drafted.  The proposed system seems to be built around an intermediate step in which individuals obtain a registry identification card from the Department of Health Services.  The card would be needed in the event that someone’s possession of marijuana is challenged by law enforcement.  Another part of the bill, however, indicates that a dispensary would be able to deliver marijuana and paraphernalia to a patient or member of the patient’s treatment team upon presentation of either a registry identification card or the patient’s written certification.

How would patients get a registry identification card?  Patients would have to fill out an application laying out their name, address and date of birth; provide a copy of their written certification; provide the name, address and telephone number of their certifying practitioner; and pay a fee.  They would also have to undergo a background check, which involves a search of Department of Justice records to see if they have been convicted of a disqualifying offense.  These included violent crimes and violations of the Controlled Substances Act that are more recent than ten years.

What about registration cards from other jurisdictions?  Under certain conditions, individuals could use registration cards from other states that have similar laws.  An out-of-state patient has to demonstrate that they meet the definition of debilitating medical condition, that they obtained their card in the course of a bone fide patient practitioner relationship, that the card remains valid in the jurisdiction in which it was issued, and they have not been in Wisconsin long enough to establish residency and obtain a Wisconsin card.

How would patients get their marijuana?  They could grow it or buy it from a dispensary.  If they were growing their own plants, they would be allowed a maximum of twelve plants.  If they were buying it, they would be allowed a maximum of three ounces of usable product.

What is the proposed distribution market for marijuana?  Under the proposed bill, any entity involved in the cultivating, acquisition, manufacturing, delivery, selling, or dispensing of marijuana would have to be licensed by the Department of Health Services as a dispensary.  The Department would have the final say on how many licenses to issue and to whom they are issued based on a number of criteria.  The criteria include the convenience of treatment teams, the licensee’s ability to provide sufficient product, the experience of the applicant in running business or nonprofits, the preferences of local governments, and ability to adhere to record keeping requirements.  Dispensaries could not be located within 500 feet of a school and must abide by various production requirements imposed by the Department.  The bill proposes a $250 application fee and a $5,000 annual fee to operate a dispensary.  A dispensary would be able to have two locations, one for growing and one for selling.

What are the contemplated quality controls?  Before marijuana can be sold it would have to be approved by an unrelated testing laboratory.  Those laboratories would be registered by the Department of Health Services.  The product would be evaluated for potency, as well as the presence of mold, fungus, pesticides and other contaminants.  Approved laboratories would also be allowed to engage in research regarding the medical use of marijuana and provide education to individuals who have registration cards, are members of treatment teams, and individuals employed by dispensaries.

These are but a few of the highlights of this “first draft” legislation.  Obviously, Wisconsin is far from having any medical marijuana program and it is by no means a foregone conclusion that it ever will.  Further, in the event that one is eventually enacted, it is a safe bet than many particulars of the proposed legislation will be altered and refined as different interests weigh in both on what the law addresses, as well as the many issues it does not.  Still, this proposed legislation mirrors concepts that exist in other states that have such legislation and if medical marijuana is ever to become a reality in Wisconsin, then potential stakeholders will need to identify their interests as the legislation and accompanying rules take form and be prepared to respond.

For more information about "Medical Marijuana in Wisconsin – What it Might Look Like," contact Guy J. DuBeau at gdubeau@axley.com or 608.283.6704.