SB1034: Bill Text

LRB-0250/1

JK/EAW/MED:emw

2021 - 2022 LEGISLATURE

2021 Senate BILL 1034

March 9, 2022 - Introduced by Senators Felzkowski and Bernier, cosponsored by Representatives Snyder, Schraa, Rozar, Edming, Kitchens, Krug, Loudenbeck, Macco, Novak, Sortwell, Tittl, Brooks, Cabral-Guevara, James, Knodl, Plumer, Spiros and Summerfield. Referred to Committee on Insurance, Licensing and Forestry.

SB1034,2,2 An Act to renumber 440.035 (2m) (b) and 450.07 (1m); to renumber and amend 440.035 (2m) (a) and 450.071 (1); to amend 15.435 (title), chapter 73 (title), 77.52 (13), 77.53 (10), 108.04 (5) (a) (intro.), 111.34 (1) (b), 182.001 (3), 961.38 (title), 961.385 (1) (aj), 961.385 (2) (intro.), 961.385 (2) (b), 961.385 (2) (cm) 3. a., 961.385 (2) (cs) 1. and 961.385 (2) (cs) 2. (intro.), b., c. and d.; and to create 15.435 (2), 15.437, 20.566 (9), 20.923 (4) (e) 13., 20.923 (6) (hp), 25.56, 73.17, 73.18, 77.54 (70), 111.32 (9m), 111.32 (12c), 111.34 (3), subchapter IV of chapter 139 [precedes 139.97], 440.035 (2m) (a) 2., 440.035 (2m) (b) 2., 441.07 (1g) (d) 3., 441.20, 448.015 (4) (bm) 3., 448.039, 450.03 (1) (em), 450.07 (1m) (b), 450.071 (1) (b) 2., 961.01 (12q), 961.01 (14g), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.33, 961.38 (1p), 961.385 (2) (am) and (an), 961.385 (2) (bc) and (bd) and 961.55 (8) (c) of the statutes; relating to: medical marijuana, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill creates a program that allows for the possession and use of medical marijuana by registered patients and that licenses medical marijuana producers, processors, dispensaries, transporters, and laboratories to operate in this state.

Medical Marijuana Regulatory Commission

The bill creates the Medical Marijuana Regulatory Commission to regulate the medical marijuana program. The commission is attached to the Department of Revenue and consists of one member appointed by the governor, one member appointed by the senate majority leader, one member appointed by the speaker of the assembly, one member appointed by the senate minority leader, and one member appointed by the assembly minority leader. The members serve staggered terms of six years each. The governor selects one of the appointees to serve as the chairperson for a two-year term.

Recommendations; registered patients and caregivers

The bill authorizes physicians, physician assistants, and certified advanced practice nurse prescribers to provide a written recommendation for a patient to use medical marijuana under certain circumstances, including the existence of a bona fide health care provider-patient relationship and that the patient suffers from a qualifying medical condition. Minors are eligible to receive a recommendation for use of medical marijuana if certain requirements are met. Medical marijuana must be in the form of a liquid, oil, pill, or tincture or in a form that is applied topically.

Under the bill, patients and primary caregivers may apply to the commission to receive a registry identification card, allowing the patient or primary caregiver to obtain medical marijuana from a dispensary. Applicants must meet certain criteria, including that the person is a resident of the state and submits a written recommendation that is less than 30 days old from a physician, physician assistant, or certified advanced practice nurse prescriber. A primary caregiver must be over the age of 21 and may not have any drug-related conviction. The commission is required to establish and maintain a list of registered cardholders and must establish rules for implementation of the medical marijuana program as it relates to recommendation and registration.

The bill also requires the commission to establish procedures for physicians, physician assistants, and certified advanced practice nurse prescribers to apply for certification and to be certified to recommend the use of medical marijuana to qualifying patients. All such persons certified by the commission must keep complete and accurate records of the recommendations made and for whom the recommendations are made and provide that information to the commission at the commission's request.

The bill provides civil, criminal, and professional disciplinary immunity for physicians, physician assistants, and certified advanced practice nurse prescribers who recommend medical marijuana for patients in accordance with the requirements and limitations specified in the bill. However, the bill allows the Medical Examining Board and the Board of Nursing to issue nonmandatory guidelines regarding best practices in making recommendations for the use of medical marijuana.

Licensed producers, processors, transporters, dispensaries, and laboratories

The bill requires any person operating as a medical marijuana producer, processor, transporter, dispensary, or laboratory to obtain a license from the commission. An applicant may not obtain a license if the applicant, or any principal officer or board member of the applicant, has been convicted of a controlled substance offense. The applicant, and each principal officer or board member must be at least 21 years old and may not have been a principal officer or board member of a producer, processor, transporter, dispensary, or laboratory that has had its license revoked and not reinstated. In addition, the applicant, or at least one principal officer or board member of the applicant, must be a resident of this state. The applicant must also show that it will have sufficient security measures and record-keeping procedures in place. A producer or processor may not have any financial interest in a dispensary or laboratory; a laboratory may not have any financial interest in a producer, processor, or dispensary; and a dispensary may not have any financial interest in a producer, processor, or laboratory. A license issued by the commission expires after one year.

Under the bill, a licensee may not operate within 300 feet of a school or child care center. Every employee of a licensee must be at least 21 years old and may not have been convicted of a controlled substance offense. In addition, dispensary employees must complete certain training, as required by the commission by rule.

The bill requires licensed producers, licensed processors, and licensed laboratories to operate within an enclosed, locked facility. A licensed producer is prohibited from growing medical marijuana for personal, family, or household use and may distribute its medical marijuana only to a licensed processor. A licensed processor must send samples of the medical marijuana that it processes to a licensed laboratory to test and certify the tetrahydrocannabinol (THC) concentration of the processor's products and test for the presence of certain contaminants; must package its products in child-resistant packaging; and must label each package with how many ounces of medical marijuana it contains and the THC concentration of the product. A licensed processor may distribute its products only to a licensed dispensary. A licensed dispensary must label the medical marijuana that it dispenses with certain information, including the name of the dispensary and the name of the patient, and may dispense medical marijuana only to a person who presents a valid registry identification card and only in accordance with the patient's recommendation. All marijuana and medical marijuana that is transported by way of a public road may only be transported by a licensed transporter.

The bill also authorizes the commission to inspect, without prior notice, the premises and records of a licensee or an applicant. The commission may also establish rules for suspending, revoking, or refusing to issue or renew a license. The bill authorizes the commission to promulgate any other rules necessary to administer and implement the medical marijuana program as it relates to producers, processors, transporters, dispensaries, and laboratories.

Medical marijuana tax

The bill imposes an excise tax on a licensed processor at the rate of 10 percent of the sales price on each wholesale sale in this state of medical marijuana to a licensed dispensary. All proceeds from the tax, and all fees and penalties collected by the commission, are deposited into a segregated fund, identified in the bill as the medical marijuana fund.

Criminal provisions

The bill decriminalizes the manufacture, possession, distribution, and delivery of medical marijuana if that manufacture, possession, distribution, or delivery is done in compliance with the medical marijuana program established by the commission.

Under current law, with certain exceptions, it is illegal to manufacture, possess, distribute, or deliver THC, including THC in marijuana, which is classified as a schedule I controlled substance. The bill authorizes the possession, distribution, or delivery of medical marijuana by a qualifying patient or his or her primary caregivers if 1) the possession, distribution, or delivery of marijuana is done to facilitate a qualifying patient's medical use of the marijuana in accordance with his or her recommendation; 2) the marijuana is legally obtained from a person who is authorized to distribute or deliver medical marijuana under the laws of this state; 3) the amount of usable marijuana does not exceed a 30-day supply of individual doses of medical marijuana per qualifying patient; and 4) the qualifying patient or primary caregiver has in his or her immediate possession a registry identification card. The bill authorizes the manufacture, possession, distribution, or delivery of medical marijuana by an entity that is licensed by the commission or an employee or agent of such a licensed entity if the manufacture, possession, distribution, or delivery is done in the usual course of business or employment.

Under the bill, if a person manufactures, possesses, distributes, delivers, or uses medical marijuana in a way that is not in compliance with the requirements of the medical marijuana program, he or she can be referred by the commission for criminal prosecution under the Controlled Substances Act or a local law that prohibits the possession, manufacture, distribution, or delivery of marijuana.

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.

The bill requires records to be generated for the PDMP documenting recommendations for medical marijuana and the issuance of registry identification cards for medical marijuana.

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 any act of an employer based on an individual's use of medical marijuana.

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.

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.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB1034,1 Section 1. 15.435 (title) of the statutes is amended to read:

SB1034,6,2 15.435 (title) Same; attached boards and commissions.

SB1034,2 Section 2. 15.435 (2) of the statutes is created to read:

SB1034,6,7 15.435 (2) Medical marijuana regulatory commission. (a) Creation; membership. No later than 30 days after the effective date of this paragraph .... [LRB inserts date], there is created a medical marijuana regulatory commission attached to the department of revenue under s. 15.03, consisting of the following members:

SB1034,6,8 1. One member appointed by the governor.

SB1034,6,9 2. One member appointed by the senate majority leader.

SB1034,6,10 3. One member appointed by the speaker of the assembly.

SB1034,6,11 4. One member appointed by the senate minority leader.

SB1034,6,12 5. One member appointed by the assembly minority leader.

SB1034,6,15 (b) Chairperson. The governor shall designate one of the appointees under par. (a) to serve as chairperson for a 2-year term. The chairperson is responsible for the commission's daily operations and administrative oversight.

SB1034,6,17 (c) Assistance. The commission may request of any state agency such assistance as may be necessary for the commission to fulfill its duties.

SB1034,6,19 (d) Licenses. The commission shall begin issuing licenses under s. 73.17 no sooner than 180 days after the creation of the commission.

SB1034,7,3 (e) Report. 1. Annually, the commission shall submit a report to the legislature under s. 13.172 (2) that provides an overview of the medical marijuana industry in this state, specifies the administrative and enforcement actions undertaken by the commission, and makes recommendations regarding the operation of the commission and the administration of ss. 73.17 and 73.18 and subch. IV of ch. 139.

SB1034,7,8 2. No later than January 15, 2022, and no later than each January 15 thereafter, the commission shall submit to the legislature, as provided under s. 13.172 (2), its recommendation for using moneys from the medical marijuana fund for law enforcement drug prevention programs, treatment alternative and diversion programs, and alcohol and other drug abuse treatment programs.

SB1034,3 Section 3. 15.437 of the statutes is created to read:

SB1034,7,13 15.437 Same; councils. (1) Council on medical marijuana. (a) There is created in the department of revenue a council on medical marijuana to provide advice to the medical marijuana regulatory commission. The council consists of the following members:

SB1034,7,14 1. One individual who represents the interests of licensees under s. 73.17.

SB1034,7,15 2. One individual who represents local government.

SB1034,7,16 3. One individual who represents law enforcement.

SB1034,7,17 4. One individual who represents medical providers.

SB1034,7,18 5. One individual who represents providers of financial services.

SB1034,7,20 6. The secretary of agriculture, trade and consumer protection or the secretary's designee.

SB1034,7,21 7. The secretary of health services or the secretary's designee.

SB1034,7,22 8. The secretary of revenue or the secretary's designee.