SB1035: Bill Text

2021 - 2022 LEGISLATURE

2021 Senate BILL 1035

March 9, 2022 - Introduced by Senators Erpenbach, Bewley, Johnson, Carpenter, Roys and Ringhand, cosponsored by Representatives Hesselbein, Considine, Cabrera, Milroy, Hebl, Sinicki, S. Rodriguez, Andraca, Emerson, Subeck, Shankland, Ohnstad, Cabral-Guevara and Stubbs. Referred to Committee on Insurance, Licensing and Forestry.

SB1035,2,2 An Act to renumber and amend 450.071 (1) and 968.19; to amend 59.54 (25) (a) (intro.), 59.54 (25m), 66.0107 (1) (bm), 66.0107 (1) (bp), 66.1201 (2m), 66.1213 (3), 66.1301 (2m), 66.1331 (2m), 66.1333 (3) (e) 2., 77.52 (13), 77.53 (10), 101.123 (1) (h) (intro.), 102.43 (9) (e), 106.50 (1m) (h), 111.35 (2) (e), 234.29, 289.33 (3) (d), 349.02 (2) (b) 4., 450.07 (1), 767.41 (5) (am) (intro.), 767.451 (5m) (a), 961.555 (2) (am) 6. and 961.56 (1); and to create 20.115 (7) (ge), 20.435 (1) (gq), 59.54 (25) (c), 66.0440, 77.54 (70), 94.57, 108.04 (5m), 111.32 (15), 111.34 (1) (c), 111.35 (2) (f), 146.44, 450.03 (1) (em), 450.03 (1) (ep), 450.07 (1s), 450.071 (1) (b) 2. and 3., 767.41 (5) (d), 767.451 (5m) (d), 961.01 (5m), 961.01 (12v), 961.01 (14c), 961.01 (14g), 961.01 (17k), 961.01 (19m), 961.01 (20hm), 961.01 (20ht), 961.01 (20t), 961.01 (21f), 961.01 (21t), 961.436, 961.55 (8) (c), (d) and (e), 961.555 (2r), 961.5755, 968.072, 968.12 (6), 968.19 (2) and 968.20 (1j) of the statutes; relating to: medical cannabis, providing an exemption from emergency rule procedures, granting rule-making authority, making an appropriation, and providing a penalty.

Analysis by the Legislative Reference Bureau

Current law prohibits a person from manufacturing, distributing, or delivering tetrahydrocannabinols (THC); possessing THC with the intent to manufacture, distribute, or deliver it; possessing or attempting to possess THC; using drug paraphernalia; or possessing drug paraphernalia. This bill creates a medical use defense to such THC-related prosecutions and forfeiture actions for a person who is registered with the Department of Health Services as having a specified debilitating medical condition or undergoing a specified debilitating treatment. The bill also prohibits the arrest or prosecution of such a person for those offenses. The defense and prohibition do not apply under certain circumstances, such as 1) if the person does not have a valid registry identification card; 2) if the amount of cannabis involved is more than 12 plants and three ounces of leaves or flowers; 3) if, while under the influence of THC, the person drives a motor vehicle or engages in other conduct that endangers another person; or 4) if the person smokes cannabis on a school bus or public transit or on school premises.

Under the bill, DHS must establish a medical cannabis registry, and a person may apply to DHS for a registry identification card. The bill specifies that the following medical conditions or treatments qualify a person for the registry: cancer, glaucoma, AIDS or HIV, Crohn's disease, a hepatitis C virus infection, Alzheimer's disease, amyotrophic lateral sclerosis, nail-patella syndrome, Ehlers-Danlos syndrome, post-traumatic stress disorder, or the treatment of these conditions; opioid abatement or reduction or treatment for opioid addiction; a chronic or debilitating disease or medical condition or the treatment of such a disease or condition that causes cachexia, severe pain, severe nausea, seizures, or severe and persistent muscle spasms; and any other medical condition or treatment DHS designates as a debilitating medical condition or treatment. DHS must issue a qualified applicant a registry identification card. DHS must keep registry information and applications confidential except for verifying status for law enforcement purposes. Under the bill, practitioners may not provide a written certification to obtain a registry identification card for himself or herself or any family member, and practitioners who provide written certifications for registry identification cards may not have any financial interest connected to a person or entity that grows, processes, or distributes cannabis.

The bill requires any person operating as a medical cannabis producer, processor, or dispensary to obtain a license from the Department of Agriculture, Trade and Consumer Protection. A producer is defined as a person who grows more than 12 cannabis plants. An applicant may not obtain a license, and DATCP must revoke a license, if the applicant or licensee is located within 500 feet of a school, distributes more than 12 cannabis plants and three ounces of cannabis leaves or flowers to any person, or possesses an excessive quantity of cannabis as determined by DATCP. The bill also requires DATCP to register laboratories to conduct testing on medical cannabis. A producer, processor, or dispensary may not have any financial interest in a laboratory, and a laboratory may not have any financial interest in a producer, processor, or dispensary. A license issued by DATCP under the bill does not expire unless revoked. An applicant for a license must pay an initial application fee of at least $250 and an annual fee of at least $5,000.

Under the bill, a licensed producer is prohibited from growing medical cannabis for personal, family, or household use and may distribute its medical cannabis only to a licensed processor. A licensed processor must send samples of the medical cannabis that it processes to a registered laboratory to test the THC concentration of the processor's products and test for the presence of certain contaminants. A licensed processor may distribute cannabis plants and processed cannabis leaves or flowers only to a licensed dispensary. A licensed dispensary may dispense medical cannabis only to a qualifying patient or caregiver who presents a valid registry identification card.

The bill authorizes DATCP to inspect, without prior notice, the premises and records of a licensee or an applicant. DATCP may also establish rules for administering and implementing the medical cannabis program as it relates to producers, processors, dispensaries, and laboratories. The bill requires DATCP to promulgate rules that are designed to promote and prioritize producers, processors, and dispensaries that are small, local organizations.

Finally, the bill prohibits discrimination in employment and licensing against individuals who have valid certifications and registration cards based on their use or possession of medical cannabis off the employer's premises during nonworking hours, unless one of certain exceptions applies. The bill similarly provides that an employee who is terminated solely due to a positive drug test for cannabis components or metabolites or who violates the employer's policy concerning the use of cannabis is not disqualified from receiving unemployment insurance or worker's compensation benefits if the employee has a valid certification and registration card, unless 1) the employee uses or possesses medical cannabis on the employer's premises or during working hours; 2) the use impairs the individual's ability to undertake adequately the job-related responsibilities of that individual's employment; or 3) the action is necessary for the employer to avoid losing certain benefits under federal law.

The bill changes state law regarding THC. It does not affect federal law, which generally prohibits persons from manufacturing, delivering, or possessing THC and applies to both intrastate and interstate violations.

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:

SB1035,1 Section 1 . 20.115 (7) (ge) of the statutes is created to read:

SB1035,4,4 20.115 (7) (ge) Medical cannabis licenses and registration. All moneys received under s. 94.57 (4) to license and regulate producers, processors, and dispensaries, and to register laboratories, under s. 94.57.

SB1035,2 Section 2 . 20.435 (1) (gq) of the statutes is created to read:

SB1035,4,8 20.435 (1) (gq) Medical cannabis registry. All moneys received as fees under s. 146.44 (2) (a) 4. and (ac) 3. and (4m) for the purposes of the medical cannabis registry program under s. 146.44.

SB1035,3 Section 3 . 59.54 (25) (a) (intro.) of the statutes is amended to read:

SB1035,4,20 59.54 (25) (a) (intro.) The board may enact and enforce an ordinance to prohibit the possession of marijuana, as defined in s. 961.01 (14), subject to par. (c) and the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance; except that if. Any ordinance enacted under this paragraph shall provide a person who is prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). If a complaint is issued regarding an allegation of possession of more than 25 grams of marijuana, or possession of any amount of marijuana following a conviction in this state for possession of marijuana, the subject of the complaint may not be prosecuted under this subsection for the same action that is the subject of the complaint unless all of the following occur:

SB1035,4 Section 4 . 59.54 (25) (c) of the statutes is created to read:

SB1035,5,3 59.54 (25) (c) A person may not be prosecuted under an ordinance enacted under par. (a) if, under s. 968.072 (2) or (4) (b), the person would not be subject to prosecution under s. 961.41 (3g) (e).

SB1035,5 Section 5 . 59.54 (25m) of the statutes is amended to read:

SB1035,5,14 59.54 (25m) Drug paraphernalia. The board may enact an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. Any ordinance enacted under this subsection shall provide a person prosecuted under it with the defenses that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted under this subsection if, under s. 968.072 (3) or (4) (b), the person would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1). The board may enforce an ordinance enacted under this subsection in any municipality within the county.

SB1035,6 Section 6 . 66.0107 (1) (bm) of the statutes is amended to read:

SB1035,6,2 66.0107 (1) (bm) Enact and enforce an ordinance to prohibit the possession of marijuana, as defined in s. 961.01 (14), subject to the exceptions in s. 961.41 (3g) (intro.), and provide a forfeiture for a violation of the ordinance ; except that if. Any ordinance enacted under this paragraph shall provide a person who is prosecuted under it with the defenses that the person has under s. 961.436 to prosecutions under s. 961.41 (1) (h), (1m) (h), or (3g) (e). If a complaint is issued regarding an allegation of possession of more than 25 grams of marijuana, or possession of any amount of marijuana following a conviction in this state for possession of marijuana, the subject of the complaint may not be prosecuted under this paragraph for the same action that is the subject of the complaint unless the charges are dismissed or the district attorney declines to prosecute the case.

SB1035,7 Section 7 . 66.0107 (1) (bp) of the statutes is amended to read:

SB1035,6,11 66.0107 (1) (bp) Enact and enforce an ordinance to prohibit conduct that is the same as that prohibited by s. 961.573 (1) or (2), 961.574 (1) or (2), or 961.575 (1) or (2) and provide a forfeiture for violation of the ordinance. Any ordinance enacted under this paragraph shall provide a person prosecuted under it with the defenses that the person has under s. 961.5755 to prosecutions under s. 961.573 (1), 961.574 (1), or 961.575 (1). A person may not be prosecuted under an ordinance enacted under this paragraph if, under s. 968.072 (3) or (4) (b), the person would not be subject to prosecution under s. 961.573 (1), 961.574 (1), or 961.575 (1).

SB1035,8 Section 8 . 66.0440 of the statutes is created to read:

SB1035,6,16 66.0440 Medical cannabis. No village, town, city, or county may enact or enforce an ordinance or a resolution that prohibits producing, processing, dispensing, testing, or possessing medical cannabis if those actions are lawfully done by any of the following:

SB1035,6,17 (1) A licensee under s. 94.57.

SB1035,6,20 (2) If the amount of cannabis does not exceed the maximum authorized amount, as defined in s. 961.01 (14c), a person who has a valid registry identification card, as defined in s. 146.44 (1) (g), and is any of the following:

SB1035,6,22 (a) A qualifying patient, as defined in s. 146.44 (1) (e), who is taking the actions to provide medical cannabis for his or her own use.

SB1035,6,24 (b) A primary caregiver, as defined in s. 146.44 (1) (d), who is taking the actions to provide medical cannabis for his or her qualifying patient.

SB1035,9 Section 9 . 66.1201 (2m) of the statutes is amended to read:

SB1035,7,9 66.1201 (2m) Discrimination. Persons otherwise entitled to any right, benefit, facility, or privilege under ss. 66.1201 to 66.1211 may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, or sexual orientation,; status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u) ,; whether the person holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a member of a treatment team, as defined in s. 961.01 (20t); or national origin.

SB1035,10 Section 10 . 66.1213 (3) of the statutes is amended to read:

SB1035,7,19 66.1213 (3) Discrimination. Persons otherwise entitled to any right, benefit, facility, or privilege under this section may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, or sexual orientation ,; status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u),; whether the person holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a member of a treatment team, as defined in s. 961.01 (20t); or national origin.

SB1035,11 Section 11 . 66.1301 (2m) of the statutes is amended to read:

SB1035,8,4 66.1301 (2m) Discrimination. Persons entitled to any right, benefit, facility, or privilege under ss. 66.1301 to 66.1329 may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, or sexual orientation ,; status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u),; whether the person holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a member of a treatment team, as defined in s. 961.01 (20t); or national origin.

SB1035,12 Section 12 . 66.1331 (2m) of the statutes is amended to read:

SB1035,8,14 66.1331 (2m) Discrimination. Persons otherwise entitled to any right, benefit, facility, or privilege under this section may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, or sexual orientation ,; status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u),; whether the person holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a member of a treatment team, as defined in s. 961.01 (20t); or national origin.

SB1035,13 Section 13 . 66.1333 (3) (e) 2. of the statutes is amended to read:

SB1035,8,23 66.1333 (3) (e) 2. Persons otherwise entitled to any right, benefit, facility, or privilege under this section may not be denied the right, benefit, facility, or privilege in any manner for any purpose nor be discriminated against because of sex, race, color, creed, or sexual orientation, ; status as a victim of domestic abuse, sexual assault, or stalking, as defined in s. 106.50 (1m) (u), ; whether the person holds, or has applied for, a registry identification card, as defined in s. 146.44 (1) (g), has been the subject of a written certification, as defined in s. 146.44 (1) (h), or is or has been a member of a treatment team, as defined in s. 961.01 (20t); or national origin.

SB1035,14 Section 14 . 77.52 (13) of the statutes is amended to read:

SB1035,9,12 77.52 (13) For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser an electronic or a paper certificate, in a manner prescribed by the department, to the effect that the property, item, good, or service is purchased for resale or is otherwise exempt, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services that are exempt under s. 77.54 (5) (a) 3., (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), (52), (66), and (67), and (70).

SB1035,15 Section 15 . 77.53 (10) of the statutes is amended to read:

SB1035,9,24 77.53 (10) For the purpose of the proper administration of this section and to prevent evasion of the use tax and the duty to collect the use tax, it is presumed that tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable services sold by any person for delivery in this state is sold for storage, use, or other consumption in this state until the contrary is established. The burden of proving the contrary is upon the person who makes the sale unless that person takes from the purchaser an electronic or paper certificate, in a manner prescribed by the department, to the effect that the property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or taxable service is purchased for resale, or otherwise exempt from the tax, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under s. 77.52 (1) (b), (c), or (d), or services that are exempt under s. 77.54 (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), (52), and (67), and (70).

SB1035,16 Section 16 . 77.54 (70) of the statutes is created to read:

SB1035,10,6 77.54 (70) The sales price from the sales of and the storage, use, or other consumption of medical cannabis and drug paraphernalia delivered or distributed by a dispensary licensed under s. 94.57.

SB1035,17 Section 17 . 94.57 of the statutes is created to read:

SB1035,10,8 94.57 Medical cannabis. (1) Definitions. In this section:

SB1035,10,13 (b) “Dispensary” means a person who obtains packaged and labeled medical cannabis from a licensed processor and dispenses that cannabis, and cannabis paraphernalia, at a permanent location to a member of a treatment team holding a valid registry identification card, regardless of whether the dispensing is done in exchange for monetary consideration.

SB1035,10,16 (c) “Laboratory” means a person who obtains medical cannabis from a licensed processor and tests that cannabis for tetrahydrocannabinol content and the presence of molds, pesticides, heavy metals, and other contaminants.

SB1035,10,18 (d) “Licensee” means a producer, processor, or dispensary that holds a valid license under this section.

SB1035,10,19 (e) “Maximum authorized amount" has the meaning given in s. 961.01 (14c).

SB1035,10,22 (f) “Medical cannabis" means a cannabis plant or usable cannabis that is intended to be used by a qualifying patient registered under s. 146.44 to alleviate the symptoms or effects of the patient's debilitating medical condition or treatment.

SB1035,11,2 (g) “Processor" means a person who obtains medical cannabis from a licensed producer, processes the medical cannabis into usable cannabis or individual cannabis plants, packages and labels the usable cannabis or cannabis plants, and transfers or sells the packaged and labeled usable cannabis or cannabis plants to a licensed dispensary.

SB1035,11,5 (h) “Producer” means a person who plants, grows, cultivates, or harvests more than 12 cannabis plants for medical cannabis and transfers or sells the medical cannabis to a licensed processor.

SB1035,11,6 (i) “Qualifying patient" has the meaning given in s. 146.44 (1) (e).

SB1035,11,7 (j) “Registry identification card" has the meaning given in s. 146.44 (1) (g).

SB1035,11,8 (k) “School” has the meaning given in s. 118.257 (1) (d).

SB1035,11,9 (L) “Treatment team" has the meaning given in s. 961.01 (20t).

SB1035,11,10 (m) “Usable cannabis” has the meaning given in s. 961.01 (21f).

SB1035,11,19 (2) License required. No person may operate in this state as a producer, processor, or dispensary without a license issued by the department under this section. A person who engages in more than one of these activities shall obtain a separate license for each activity. A licensee may engage in the licensed activity at more than one location without obtaining a separate license. No licensee may operate at more than 2 separate locations, regardless of the number of licenses held. A person who is an employee of a licensee is not required to obtain a separate license. A person is not required to obtain a license under this section if the person handles only industrial hemp and holds a valid license under s. 94.55.

SB1035,11,22 (3) License criteria. (a) The department may issue a license under this section to an applicant only if the applicant has been a resident of this state for at least the 2 years immediately preceding the date of application.

SB1035,11,24 (b) The department may not issue a license to, and must revoke a license of, any entity to which any of the following applies:

SB1035,11,25 1. The entity is located within 500 feet of a school, including a charter school.

SB1035,12,4 2. If the entity is a dispensary, the dispensary distributes to a member of a treatment team a number of cannabis plants or an amount of usable cannabis that, in the period of distribution, results in the treatment team possessing more than the maximum authorized amount.

SB1035,12,8 3. The dispensary possesses a number of cannabis plants or an amount of usable cannabis that exceeds the combined maximum authorized amount for all of the treatment teams that use the dispensary by a number or an amount determined by the department by rule to be unacceptable.

SB1035,12,10 4. The applicant, or a principal officer or board member of the applicant, has a financial interest in a registered laboratory.

SB1035,12,13 (4) Licensing procedure; fees; license term. (a) An application for a license under this section shall be in writing on a form provided by the department and include the licensing application fee under par. (b) 1.

SB1035,12,15 (b) 1. A licensing application fee shall be an amount determined by the department but not less than $250.

SB1035,12,17 2. The annual fee for a licensee shall be an amount determined by the department but not less than $5,000.

SB1035,12,19 (c) A license is valid unless revoked. Each license shall be issued only for the applicant named in the application and may not be transferred or assigned.

SB1035,12,24 (5) Producers. (a) A licensed producer may plant, grow, cultivate, and harvest medical cannabis, including planting, growing, cultivating, and harvesting outdoors; transfer or sell the medical cannabis to a licensed processor; and engage in any related activities that are necessary for the operation, such as possessing, storing, and transporting the medical cannabis.

SB1035,13,2 (b) A licensed producer may not plant, grow, cultivate, or harvest medical cannabis for personal, family, or household use.

SB1035,13,10 (6) Processors. (a) A licensed processor may obtain medical cannabis from a licensed producer; process the medical cannabis into usable cannabis or individual cannabis plants; transfer samples of the usable cannabis or individual cannabis plants to a registered laboratory; package and label the usable cannabis or individual cannabis plants; transfer or sell the usable cannabis or individual cannabis plants to a licensed dispensary; and engage in any related activities that are necessary for the operation, such as possessing, storing, and transporting the usable cannabis or individual cannabis plants.

SB1035,13,17 (b) Before distributing medical cannabis to a licensed dispensary, a licensed processor shall provide samples of each type of cannabis plant and usable cannabis that it processes to a registered laboratory to test for mold, fungus, pesticides, and other contaminants and may not distribute medical cannabis that tests positive for mold, fungus, pesticides, or other contaminants if the contaminants or the level of contaminants is identified by the laboratory as being potentially unsafe to an individual's health.

SB1035,13,22 (7) Dispensaries. (a) A licensed dispensary may obtain packaged, labeled medical cannabis from a licensed processor; dispense the medical cannabis according to the provisions of this section; and engage in any related activities that are necessary for the operation, such as possessing, storing, and transporting the medical cannabis.

SB1035,13,24 (b) A licensed dispensary may dispense medical cannabis only to a person who presents a valid registry identification card.