Chapter 961

961.01(5) (5) “Counterfeit substance” means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name or other identifying mark, imprint, number or device, or any likeness thereof, of a manufacturer, distributor or dispenser other than the person who in fact manufactured, distributed or dispensed the substance.

961.01(6) (6) “Deliver” or “delivery”, unless the context otherwise requires, means the actual, constructive or attempted transfer from one person to another of a controlled substance or controlled substance analog, whether or not there is any agency relationship.

961.01(7) (7) “Dispense” means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling or compounding necessary to prepare the substance for that delivery.

961.01(8) (8) “Dispenser” means a practitioner who dispenses.

961.01(9) (9) “Distribute” means to deliver other than by administering or dispensing a controlled substance or controlled substance analog.

961.01(10) (10) “Distributor” means a person who distributes.

961.01(10m) (10m) “Diversion” means the transfer of any controlled substance from a licit to an illicit channel of distribution or use.

961.01(11) (11) 

961.01(11)(a) (a) “Drug” means any of the following:

961.01(11)(a)1. 1. A substance recognized as a drug in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States or official National Formulary or any supplement to any of them.

961.01(11)(a)2. 2. A substance intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or animals.

961.01(11)(a)3. 3. A substance, other than food, intended to affect the structure or any function of the body of humans or animals.

961.01(11)(a)4. 4. A substance intended for use as a component of any article specified in subd. 1., 2. or 3.

961.01(11)(b) (b) “Drug” does not include devices or their components, parts or accessories.

961.01(11m) (11m) “Drug enforcement administration” means the drug enforcement administration of the U.S. department of justice or its successor agency.

961.01(11s) (11s) “Gamma-butyrolactone” means gamma-butyrolactone as packaged, marketed, manufactured, or promoted for human consumption, but does not include gamma-butyrolactone intended for use or consumption in or for mechanical, industrial, manufacturing, or scientific applications or purposes.

961.01(11t) (11t) “Ephedrine product” means any material, compound, mixture, or preparation that contains any quantity of ephedrine or any of its salts, isomers, and salts of isomers.

961.01(12) (12) “Immediate precursor” means a substance which the controlled substances board has found to be and by rule designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit manufacture.

961.01(12g) (12g) “Isomer” means an optical isomer, but in s. 961.16 (2) (b) 1. “isomer” includes any geometric isomer; in s. 961.20 (4) (am) “isomer” includes any positional isomer; and in ss. 961.14 (2) (nd) and (4) and 961.18 (2m) “isomer” includes any positional or geometric isomer.

961.01 Note NOTE: Section 961.20 (4) (am) was repealed by the controlled substances board in s. CSB 2.002, Wis. Adm. Code. Corrective legislation is pending.

961.01(12m) (12m) “Jail or correctional facility” means any of the following:

961.01(12m)(a) (a) A Type 1 prison, as defined in s. 301.01 (5).

961.01(12m)(b) (b) A jail, as defined in s. 302.30.

961.01(12m)(c) (c) A house of correction.

961.01(12m)(d) (d) A Huber facility under s. 303.09.

961.01(12m)(e) (e) A lockup facility, as defined in s. 302.30.

961.01(12m)(f) (f) A work camp under s. 303.10.

961.01(12t) (12t) “Liquid-filled pseudoephedrine gelcap” means a soft, liquid-filled gelatin capsule that is intended to be sold at retail and that contains pseudoephedrine or any of its salts, isomers, or salts of isomers.

961.01(13) (13) “Manufacture” means the production, preparation, propagation, compounding, conversion or processing of, or to produce, prepare, propagate, compound, convert or process, a controlled substance or controlled substance analog, directly or indirectly, by extraction from substances of natural origin, chemical synthesis or a combination of extraction and chemical synthesis, including to package or repackage or the packaging or repackaging of the substance, or to label or to relabel or the labeling or relabeling of its container. “Manufacture” does not mean to prepare, compound, package, repackage, label or relabel or the preparation, compounding, packaging, repackaging, labeling or relabeling of a controlled substance:

961.01(13)(a) (a) By a practitioner as an incident to the practitioner’s administering or dispensing of a controlled substance in the course of the practitioner’s professional practice; or

961.01(13)(b) (b) By a practitioner, or by the practitioner’s authorized agent under the practitioner’s supervision, for the purpose of, or as an incident to, research, teaching or chemical analysis and not for sale.

961.01(14) (14) “Marijuana” means all parts of the plants of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin, including tetrahydrocannabinols. “Marijuana” does include the mature stalks if mixed with other parts of the plant, but does not include fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination. “Marijuana” does not include hemp, as defined in s. 94.55 (1).

961.01(14m) (14m) “Multiunit public housing project” means a public housing project that includes 4 or more dwelling units in a single parcel or in contiguous parcels.

961.01(15) (15) “Narcotic drug” means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

961.01(15)(a) (a) Opium and substances derived from opium, and any compound, derivative or preparation of opium or substances derived from opium, including any of their salts, isomers and salts of isomers that are theoretically possible within the specific chemical designation. The term does not include the isoquinoline alkaloids of opium.

961.01(15)(bm) (bm) Synthetic opiate, and any derivative of synthetic opiate, including any of their isomers, esters, ethers, esters and ethers of isomers, salts and salts of isomers, esters, ethers and esters and ethers of isomers that are theoretically possible within the specific chemical designation.

961.01(15)(c) (c) Opium poppy, poppy straw and concentrate of poppy straw.

961.01(15)(d) (d) Any compound, mixture or preparation containing any quantity of any substance included in pars. (a) to (c).

961.01(16) (16) “Opiate” means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. “Opiate” includes opium, substances derived from opium and synthetic opiates. “Opiate” does not include, unless specifically scheduled as a controlled substance under s. 961.11, the dextrorotatory isomer of 3-methoxy-N-methylmorphinan and its salts (dextromethorphan). “Opiate” does include the racemic and levorotatory forms of dextromethorphan.

961.01(17) (17) “Opium poppy” means any plant of the species Papaver somniferum L., except its seeds.

961.01(18) (18) “Poppy straw” means all parts, except the seeds, of the opium poppy, after mowing.

961.01(19) (19) “Practitioner” means:

961.01(19)(a) (a) A physician, advanced practice nurse, dentist, veterinarian, podiatrist, optometrist, scientific investigator or, subject to s. 448.975 (1) (b), a physician assistant, or other person licensed, registered, certified or otherwise permitted to distribute, dispense, conduct research with respect to, administer or use in teaching or chemical analysis a controlled substance in the course of professional practice or research in this state.

961.01(19)(b) (b) A pharmacy, hospital or other institution licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or administer a controlled substance in the course of professional practice or research in this state.

961.01(20) (20) “Production”, unless the context otherwise requires, includes the manufacturing of a controlled substance or controlled substance analog and the planting, cultivating, growing or harvesting of a plant from which a controlled substance or controlled substance analog is derived.

961.01(20b) (20b) “Pseudoephedrine liquid” means a product that is intended to be sold at retail, that is a liquid at room temperature, and that contains pseudoephedrine or any of its salts, isomers, or salts of isomers.

961.01(20c) (20c) “Pseudoephedrine product” means a material, compound, mixture, or preparation containing any quantity of pseudoephedrine or any of its salts, isomers, or salts of isomers but does not include such a product if any of the following applies:

961.01(20c)(a) (a) The product is a pseudoephedrine liquid or a liquid-filled pseudoephedrine gelcap. This paragraph does not apply if the controlled substances board has determined, by rule, that the product can be readily used in the manufacture of methamphetamine.

961.01(20c)(b) (b) The controlled substances board has determined, by rule, that the product cannot be readily used in the manufacture of methamphetamine.

961.01(20g) (20g) “Public housing project” means any housing project or development administered by a housing authority, as defined in s. 16.301 (2).

961.01(20h) (20h) “Public transit vehicle” means any vehicle used for providing transportation service to the general public.

961.01(20i) (20i) “Scattered-site public housing project” means a public housing project that does not include 4 or more dwelling units in a single parcel or in contiguous parcels.

961.01(21) (21) “Ultimate user” means an individual who lawfully possesses a controlled substance for that individual’s own use or for the use of a member of that individual’s household or for administering to an animal owned by that individual or by a member of that individual’s household.

961.01(21m) (21m) “Vehicle” has the meaning given in s. 939.22 (44).

961.01(22) (22) “Youth center” means any center that provides, on a regular basis, recreational, vocational, academic or social services activities for persons younger than 21 years old or for those persons and their families.

961.01 History History: 1971 c. 219; 1979 c. 89; 1981 c. 200, 206; 1983 a. 500 s. 43; 1989 a. 31; 1993 a. 87, 129, 138, 184, 281, 482; 1995 a. 281 s. 2; 1995 a. 448 ss. 112 to 143, 247, 248, 464 to 468; Stats. 1995 s. 961.01; 1997 a. 35 s. 338; 1997 a. 67; 1999 a. 85; 2003 a. 33; 2005 a. 14, 52; 2011 a. 32; 2013 a. 151; 2017 a. 60; 2019 a. 68; 2021 a. 23; s. CSB 2.21, Wis. adm. code.

961.01 Annotation A constructive delivery under sub. (6) may be found if a single actor leaves a substance somewhere for later retrieval by another. State v. Wilson, 180 Wis. 2d 414, 509 N.W.2d 128 (Ct. App. 1993).

961.01 Annotation Day care centers are a subset of “youth centers” as defined in sub. (22) and come within the definition of places listed in s. 961.49 (2). State v. Van Riper, 222 Wis. 2d 197, 586 N.W.2d 198 (Ct. App. 1998), 97-3367.

subch. II of ch. 961 SUBCHAPTER II

STANDARDS AND SCHEDULES

961.11 961.11 Authority to control.

961.11(1) (1) The controlled substances board shall administer this subchapter and may add substances to or delete or reschedule all substances listed in the schedules in ss. 961.14, 961.16, 961.18, 961.20 and 961.22 pursuant to the rule-making procedures of ch. 227.

961.11(1m) (1m) In making a determination regarding a substance, the board shall consider the following:

961.11(1m)(a) (a) The actual or relative potential for abuse;

961.11(1m)(b) (b) The scientific evidence of its pharmacological effect, if known;

961.11(1m)(c) (c) The state of current scientific knowledge regarding the substance;

961.11(1m)(d) (d) The history and current pattern of abuse;

961.11(1m)(e) (e) The scope, duration and significance of abuse;

961.11(1m)(f) (f) The risk to the public health;

961.11(1m)(g) (g) The potential of the substance to produce psychological or physical dependence liability; and

961.11(1m)(h) (h) Whether the substance is an immediate precursor of a substance already controlled under this chapter.

961.11(1r) (1r) The controlled substances board may consider findings of the federal food and drug administration or the drug enforcement administration as prima facie evidence relating to one or more of the determinative factors.

961.11(2) (2) After considering the factors enumerated in sub. (1m), the controlled substances board shall make findings with respect to them and promulgate a rule controlling the substance upon finding that the substance has a potential for abuse.

961.11(3) (3) The controlled substances board, without regard to the findings required by sub. (2) or ss. 961.13, 961.15, 961.17, 961.19 and 961.21 or the procedures prescribed by subs. (1), (1m), (1r) and (2), may add an immediate precursor to the same schedule in which the controlled substance of which it is an immediate precursor is included or to any other schedule. If the board designates a substance as an immediate precursor, substances which are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor.

961.11(4) (4) If a substance is designated, rescheduled or deleted as a controlled substance under federal law and notice thereof is given to the controlled substances board, the board by affirmative action shall similarly treat the substance under this chapter after the expiration of 30 days from the date of publication in the federal register of a final order designating the substance as a controlled substance or rescheduling or deleting the substance or from the date of issuance of an order of temporary scheduling under 21 USC 811 (h), unless within that 30-day period, the board or an interested party objects to the treatment of the substance. If no objection is made, the board shall promulgate, without making the determinations or findings required by subs. (1), (1m), (1r) and (2) or s. 961.13, 961.15, 961.17, 961.19 or 961.21, a final rule, for which notice of proposed rule making is omitted, designating, rescheduling, temporarily scheduling or deleting the substance. If an objection is made the board shall publish notice of receipt of the objection and the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall make a determination with respect to the treatment of the substance as provided in subs. (1), (1m), (1r) and (2) and shall publish its decision, which shall be final unless altered by statute. Upon publication of an objection to the treatment by the board, action by the board under this chapter is stayed until the board promulgates a rule under sub. (2).

961.11(4g) (4g) Notwithstanding sub. (4), if cannabidiol or nabiximols is rescheduled or deleted as a controlled substance under federal law, the controlled substances board shall similarly treat cannabidiol or nabiximols under this chapter as soon as practically possible but no later than 30 days from the date of publication in the federal register of a final order rescheduling or deleting cannabidiol or nabiximols or from the date of issuance of an order of temporary scheduling under 21 USC 811 (h). The board shall promulgate, without making the determinations or findings required by subs. (1), (1m), (1r), and (2) or s. 961.13, 961.15, 961.17, 961.19, or 961.21, a final rule, for which notice of proposed rule making is omitted, rescheduling or deleting cannabidiol or nabiximols.

961.11(4m) (4m) The controlled substances board, by rule and without regard to the requirements of sub. (1m), may schedule a controlled substance analog as a substance in schedule I regardless of whether the substance is substantially similar to a controlled substance in schedule I or II, if the board finds that scheduling of the substance on an emergency basis is necessary to avoid an imminent hazard to the public safety and the substance is not included in any other schedule or no exemption or approval is in effect for the substance under 21 USC 355. Upon receipt of notice under s. 961.25, the board shall initiate scheduling of the controlled substance analog on an emergency basis under this subsection. The scheduling of a controlled substance analog under this subsection expires one year after the adoption of the scheduling rule. With respect to the finding of an imminent hazard to the public safety, the board shall consider whether the substance has been scheduled on a temporary basis under federal law or factors under sub. (1m) (d), (e) and (f), and may also consider clandestine importation, manufacture or distribution, and, if available, information concerning the other factors under sub. (1m). The board may not promulgate a rule under this subsection until it initiates a rule-making proceeding under subs. (1), (1m), (1r) and (2) with respect to the controlled substance analog. A rule promulgated under this subsection lapses upon the conclusion of the rule-making proceeding initiated under subs. (1), (1m), (1r) and (2) with respect to the substance.

961.11(5) (5) The authority of the controlled substances board to control under this section does not extend to intoxicating liquors, as defined in s. 139.01 (3), to fermented malt beverages as defined in s. 125.02, or to tobacco.

961.11(6) (6) 

961.11(6)(a) (a) The controlled substances board shall not have authority to control a nonnarcotic substance if the substance may, under the federal food, drug and cosmetic act and the laws of this state, be lawfully sold over the counter without a prescription. This paragraph does not apply to the promulgation of rules by the controlled substances board under s. 961.01 (20c).

961.11(6)(b) (b) If the board finds that any nonnarcotic substance barred from control under this chapter by par. (a) is dangerous to or is being so used as to endanger the public health and welfare, it may request the department of justice in the name of the state to seek a temporary restraining order or temporary injunction under ch. 813 to either ban or regulate the sale and possession of the substance. The order or injunction shall continue until the adjournment of the legislature convened next following its issuance. In making its findings as to nonnarcotic substances under this paragraph, the board shall consider the items specified in sub. (1m).

961.11 History History: 1971 c. 219, 307; Sup. Ct. Order, 67 Wis. 2d 585, 774 (1975); 1981 c. 79 s. 18; 1983 a. 189 s. 329 (13); 1995 a. 448 ss. 145 to 152, 469, 470; Stats. 1995 s. 961.11; 2005 a. 14; 2017 a. 4; 2019 a. 68.

961.11 Cross-reference Cross-reference: See also CSB, Wis. adm. code.

961.115 961.115 Native American Church exemption. This chapter does not apply to the nondrug use of peyote and mescaline in the bona fide religious ceremonies of the Native American Church.

961.115 History History: 1971 c. 219; 1995 a. 448 s. 153; Stats. 1995 s. 961.115.

961.115 Annotation Because the exemption is based upon the unique cultural heritage of Native Americans, it is not an unconstitutional classification. State v. Peck, 143 Wis. 2d 624, 422 N.W.2d 160 (Ct. App. 1988).

961.12 961.12 Nomenclature. The controlled substances listed in or added to the schedules in ss. 961.14, 961.16, 961.18, 961.20 and 961.22 may be listed or added by any official, common, usual, chemical or trade name used for the substance.

961.12 History History: 1971 c. 219; 1995 a. 448 s. 154; Stats. 1995 s. 961.12.

961.13 961.13 Schedule I tests.