Chapter 961

961.235(3m) (3m) Except as provided in sub. (4), a seller shall electronically submit records of pseudoephedrine sales to the system before completing a sale of a nonprescription pseudoephedrine product.

961.235(4) (4) If a seller who is attempting to complete a sale of a nonprescription pseudoephedrine product experiences mechanical or electronic failure of the system and is unable to comply with the requirement in sub. (3m), the seller may, subject to the requirement under s. 961.23 (4) (b), complete the sale without complying with the requirement under sub. (3m). The seller shall maintain a written log or an alternative electronic record-keeping mechanism until such time as the seller is able to comply with the requirement.

961.235(5) (5) A seller may not complete a sale of a nonprescription pseudoephedrine product if the system generates a stop sale alert unless the seller has a reasonable fear of imminent bodily harm if he or she does not complete the sale. The seller may use the system’s override function to complete the sale if he or she has a reasonable fear of imminent bodily harm.

961.235(6) (6) A pharmacist shall make records required under s. 961.23 (4) (b) available to a law enforcement officer who requests them. Law enforcement officers may make those records available to other persons or redisclose information from those records to other persons only in connection with a criminal investigation or prosecution under this chapter.

961.235(7) (7) The system shall provide real-time access through an online portal to records of pseudoephedrine sales submitted under sub. (3m) to the department of justice and to law enforcement officers in the state. Law enforcement officers may make those records available to other persons or redisclose information from those records to other persons only in connection with a criminal investigation or prosecution under this chapter.

961.235(8) (8) Absent negligence, wantonness, recklessness, or deliberate misconduct, any seller utilizing the system in accordance with this section shall not be civilly liable as a result of any act or omission in carrying out the duties required by this section and shall be immune from liability to any third party unless the seller has violated any provision of this section in relation to a claim brought for such a violation.

961.235 History History: 2005 a. 14, 262; 2017 a. 98.

961.24 961.24 Publishing of updated schedules. The controlled substances board shall publish updated schedules annually. The failure of the controlled substances board to publish an updated schedule under this section is not a defense in any administrative or judicial proceeding under this chapter.

961.24 History History: 1971 c. 219; 1993 a. 213; 1995 a. 448 s. 229; Stats. 1995 s. 961.24.

961.25 961.25 Controlled substance analog treated as a schedule I substance. A controlled substance analog, to the extent it is intended for human consumption, shall be treated, for the purposes of this chapter, as a substance included in schedule I, unless a different treatment is specifically provided. No later than 60 days after the commencement of a prosecution concerning a controlled substance analog, the district attorney shall provide the controlled substances board with information relevant to emergency scheduling under s. 961.11 (4m). After a final determination by the controlled substances board that the controlled substance analog should not be scheduled, no prosecution relating to that substance as a controlled substance analog may be commenced or continued.

961.25 History History: 1995 a. 448.

subch. III of ch. 961 SUBCHAPTER III

REGULATION OF MANUFACTURE, DISTRIBUTION,
DISPENSING AND POSSESSION OF
CONTROLLED SUBSTANCES

961.31 961.31 Rules. The pharmacy examining board may promulgate rules relating to the manufacture, distribution and dispensing of controlled substances within this state.

961.31 History History: 1971 c. 219; 1995 a. 448 s. 231; Stats. 1995 s. 961.31.

961.31 Cross-reference Cross-reference: See also ch. Phar 8, Wis. adm. code.

961.32 961.32 Possession authorization.

961.32(1m) (1m) 

961.32(1m)(a) (a) Persons registered under federal law to manufacture, distribute, dispense or conduct research with controlled substances may possess, manufacture, distribute, dispense or conduct research with those substances in this state to the extent authorized by their federal registration and in conformity with the other provisions of this chapter.

961.32(1m)(b) (b) The following persons need not be registered under federal law to lawfully possess controlled substances in this state:

961.32(1m)(b)1. 1. An agent or employee of any registered manufacturer, distributor or dispenser of any controlled substance if the agent or employee is acting in the usual course of the agent’s or employee’s business or employment;

961.32(1m)(b)2. 2. A common or contract carrier or warehouse keeper, or an employee thereof, whose possession of any controlled substance is in the usual course of business or employment;

961.32(1m)(b)3. 3. An ultimate user or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a schedule V substance.

961.32(1m)(b)4. 4. Any person exempted under federal law, or for whom federal registration requirements have been waived.

961.32(1m)(b)5. 5. A person actively engaged in the direct operation or implementation of a drug disposal program that is authorized under s. 165.65 (2) or (3) or is authorized under federal law, as defined in s. 165.65 (1) (a).

961.32(2m) (2m) 

961.32(2m)(a) (a) In this subsection, “certification” means a letter or other official document issued by a physician licensed under s. 448.04 (1) (a) that contains all of the following:

961.32(2m)(a)1. 1. The name, address, and telephone number of the physician.

961.32(2m)(a)2. 2. The name and address of the patient who is issued the letter or document.

961.32(2m)(a)3. 3. The date on which the letter or document is issued.

961.32(2m)(b) (b) An individual may possess a cannabidiol product if the individual has certification stating that the individual possesses a cannabidiol product to treat a medical condition, if the certification has an issue date that is no more than one year prior to the possession, and if any expiration date provided by the physician in the certification has not passed. A certification is not required to possess hemp, as defined in s. 94.55 (1), or a prescription drug product that has been approved by the U.S. food and drug administration.

961.32(3) (3) 

961.32(3)(a) (a) In this subsection:

961.32(3)(a)1. 1. “Cannabis” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not.

961.32(3)(a)2. 2. “Hemp” has the meaning given in s. 94.55 (1).

961.32(3)(b) (b) A person who is not otherwise violating s. 94.55 or rules promulgated by the department of agriculture, trade and consumer protection under s. 94.55 may not be prosecuted for a criminal offense under this chapter, or under an ordinance enacted under s. 59.54 (25) or 66.0107 (1) (bm), for any of the following:

961.32(3)(b)1. 1. Planting, growing, cultivating, harvesting, producing, processing, or transporting cannabis that contains a delta-9-tetrahydrocannabinol concentration of the crop of not more than 0.7 percent above the permissible limit for hemp on a dry weight basis or that is grown from hemp seed certified under s. 94.55 (2) (c) or approved for growing by the department of agriculture, trade and consumer protection under s. 94.55 (2) (f).

961.32(3)(b)3. 3. Selling, transferring, importing, exporting, processing, transporting, harvesting, or taking possession of cannabis that has been tested and certified, by the department of agriculture, trade and consumer protection or a person approved by the department of agriculture, trade and consumer protection under s. 94.55 (2) (b) 4g., as meeting the permissible delta-9-tetrahydrocannabinol concentration limit for hemp if the person has no reason to believe that the test certification is incorrect.

961.32(3)(b)4. 4. Possessing cannabis that contains a delta-9-tetrahydrocannabinol concentration of not more than 0.7 percent above the permissible limit for hemp on a dry weight basis if the possessor reconditions or processes the cannabis to a delta-9-tetrahydrocannabinol concentration at or below the permissible limit for hemp with the approval of the department of agriculture, trade and consumer protection of those actions.

961.32(3)(b)4m. 4m. Temporarily possessing cannabis during the normal course of processing hemp if the possessor reconditions or processes the cannabis to a delta-9-tetrahydrocannabinol concentration at or below the permissible limit for hemp within a reasonable amount of time.

961.32(3)(b)4r. 4r. Possessing cannabis purchased or obtained at retail that contains a delta-9-tetrahydrocannabinol concentration of not more than 0.7 percent above the permissible limit for hemp if the possessor has no reason to believe that the cannabis contains a delta-9-tetrahydrocannabinol concentration above the permissible limit for hemp.

961.32(3)(b)5. 5. Taking samples of cannabis, transporting samples to a testing facility, or testing samples for their delta-9-tetrahydrocannabinol concentration or for the presence of other substances.

961.32(3)(c) (c) A person who violates s. 94.55 or a rule promulgated under s. 94.55 may not be prosecuted under s. 94.55 or this chapter unless the person is referred to the district attorney for the county in which the violation occurred or to the department of justice by the department of agriculture, trade and consumer protection, and may not be prosecuted under an ordinance enacted under s. 59.54 (25) or 66.0107 (1) (bm), unless the person is referred to the local prosecuting authority by the department of agriculture, trade and consumer protection.

961.32(3)(cm) (cm) A hemp producer that negligently violates s. 94.55 or a rule promulgated under s. 94.55, as described under s. 94.55 (2g) (a), may not be prosecuted under s. 94.55 or this chapter or an ordinance enacted under s. 59.54 (25) or 66.0107 (1) (bm).

961.32(3)(d) (d) Notwithstanding s. 961.41 (4) (am) 2. a., engaging in an activity described under s. 94.55 (2) (a) does not constitute prima facie evidence of a prohibited representation under s. 961.41 (4) (am) 1. a. or b.

961.32 History History: 1971 c. 219, 336; 1983 a. 500 s. 43; 1993 a. 482; 1995 a. 448 s. 232; Stats. 1995 s. 961.32; 2013 a. 198; 2017 a. 4, 100; 2019 a. 68.

961.32 Annotation A doctor or dentist who dispenses drugs to a patient within the course of professional practice is not subject to criminal liability. State v. Townsend, 107 Wis. 2d 24, 318 N.W.2d 361 (1982).

961.335 961.335 Special use authorization.

961.335(1) (1) 

961.335(1)(a) (a) Upon application the controlled substances board may issue a permit authorizing a person to manufacture, obtain, possess, use, administer, or dispense a controlled substance for purposes of scientific research, instructional activities, chemical analysis, or other special uses, without restriction because of enumeration.

961.335(1)(b) (b) Except as provided in par. (c), no person may engage in any activity described under par. (a) without a permit issued under this section.

961.335(1)(c) (c)

961.335(1)(c)1. 1. A person who is actively engaged in the direct operation or implementation of a drug disposal program that is authorized under s. 165.65 (2) or (3) or is authorized under federal law, as defined in s. 165.65 (1) (a), may, without a permit issued under this section, obtain or possess a controlled substance for the purposes of operating and implementing the drug disposal program.

961.335(1)(c)2. 2. A person who is permitted under federal law to dispose of a controlled substance may, without a permit issued under this section, possess the controlled substance for the purpose of disposing of the controlled substance.

961.335(1)(c)3. 3. An individual who is designated and authorized to receive a permit under this section for a college or university department, research unit, or similar administrative organizational unit, and students, laboratory technicians, research specialists, or chemical analysts under his or her supervision, may, without an additional permit issued under this section, possess and use a controlled substance, for the purposes authorized in the permit received for the department or unit.

961.335(2) (2) A permit issued under this section shall be valid for one year from the date of issue.

961.335(3) (3) The fee for a permit under this section shall be an amount determined by the controlled substances board but shall not exceed $25. No fee may be charged for permits issued to employees of state agencies or institutions.

961.335(4) (4) Permits issued under this section shall be effective only for and shall specify:

961.335(4)(a) (a) The name and address of the permittee.

961.335(4)(b) (b) The nature of the project authorized by the permit.

961.335(4)(c) (c) The controlled substances to be used in the project, by name if included in schedule I, and by name or schedule if included in any other schedule, except that, for any permit issued to a state crime laboratory, the permit is effective for any controlled substance whether or not the name or schedule is specified.

961.335(4)(d) (d) Whether dispensing to human subjects is authorized.

961.335(5) (5) A permit shall be effective only for the person, project, and, except as provided in sub. (4) (c), substances specified on its face and for additional projects which derive directly from the stated project. Upon application, a valid permit may be amended to add a further activity or to add further substances or schedules to the project permitted thereunder. The fee for such amendment shall be determined by the controlled substances board but shall not exceed $5.

961.335(6) (6) Persons who possess a valid permit issued under this section are exempt from state prosecution for possession and distribution of controlled substances to the extent of the authorization.

961.335(7) (7) The controlled substances board may authorize persons engaged in research on the use and effects of controlled substances to withhold the names and other identifying characteristics of individuals who are the subjects of research. Persons who obtain this authorization are not compelled in any civil, criminal, administrative, legislative or other proceeding to identify or to identify to the board the individuals who are the subjects of research for which the authorization was obtained.

961.335(8) (8) The controlled substances board may promulgate rules relating to the granting of special use permits including, but not limited to, requirements for the keeping and disclosure of records other than those that may be withheld under sub. (7), submissions of protocols, filing of applications and suspension or revocation of permits.

961.335 Cross-reference Cross-reference: See also ch. CSB 3, Wis. adm. code.

961.335(9) (9) The controlled substances board may suspend or revoke a permit upon a finding that there is a violation of the rules of the board.

961.335 History History: 1971 c. 219; 1975 c. 110, 199; 1977 c. 26; 1995 a. 448 s. 233; Stats. 1995 s. 961.335; 2013 a. 198; 2015 a. 298.

961.337 961.337 Drug disposal programs. Nothing in this chapter, or rules promulgated under this chapter, prohibits any of the following:

961.337(1) (1) The direct operation or implementation of a drug disposal program that is authorized under s. 165.65 (2) or (3) or is authorized under federal law, as defined in s. 165.65 (1) (a).

961.337(2) (2) The transfer by the ultimate user, or by another person that lawfully possesses the controlled substance or controlled substance analog, of a controlled substance or controlled substance analog to a drug disposal program that has been authorized under s. 165.65 (2) or (3) or is authorized under federal law, as defined in s. 165.65 (1) (a), and that accepts the controlled substance or controlled substance analog.

961.337 History History: 2013 a. 198.

961.34 961.34 Controlled substances therapeutic research.

961.34(1) (1) Upon the request of any practitioner, the controlled substances board shall aid the practitioner in applying for and processing an investigational drug permit for marijuana under 21 USC 355 (i). If the federal food and drug administration issues an investigational drug permit, the controlled substances board shall approve which pharmacies can distribute the marijuana to patients upon written prescription. Only pharmacies located within hospitals are eligible to receive the marijuana for distribution. The controlled substances board shall also approve which practitioners can write prescriptions for the marijuana.

961.34(2) (2) Upon the request of any physician, the controlled substances board shall aid the physician in applying for and processing an investigational drug permit under 21 USC 355 (i) for cannabidiol as treatment for a medical condition.

961.34 History History: 1981 c. 193; 1983 a. 189 s. 329 (18); 1985 a. 146 s. 8; 1995 a. 448 ss. 16 to 19; Stats. 1995 s. 961.34; 2013 a. 267; 2019 a. 68.

961.34 Annotation Reefer Madness: Lighting Up in the Dairyland. Bailey. Wis. Law. Nov. 2014.

961.36 961.36 Controlled substances board duties relating to diversion control and prevention, compliance with controlled substances law and advice and assistance.

961.36(1) (1) The controlled substances board shall regularly prepare and make available to state regulatory, licensing and law enforcement agencies descriptive and analytic reports on the potential for diversion and actual patterns and trends of distribution, diversion and abuse within the state of certain controlled substances the board selects that are listed in s. 961.16, 961.18, 961.20 or 961.22.

961.36(1m) (1m) At the request of the department of safety and professional services or a board, examining board or affiliated credentialing board in the department of safety and professional services, the controlled substances board shall provide advice and assistance in matters related to the controlled substances law to the department or to the board, examining board or affiliated credentialing board in the department making the request for advice or assistance.

961.36(2) (2) The controlled substances board shall enter into written agreements with local, state and federal agencies to improve the identification of sources of diversion and to improve enforcement of and compliance with this chapter and other laws and regulations pertaining to unlawful conduct involving controlled substances. An agreement must specify the roles and responsibilities of each agency that has information or authority to identify, prevent or control drug diversion and drug abuse. The board shall convene periodic meetings to coordinate a state diversion prevention and control program. The board shall assist and promote cooperation and exchange of information among agencies and with other states and the federal government.

961.36(3) (3) The controlled substances board shall evaluate the outcome of its program under this section and shall annually submit a report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (3), on its findings with respect to its effect on distribution and abuse of controlled substances, including recommendations for improving control and prevention of the diversion of controlled substances.

961.36 History History: 1981 c. 200; 1987 a. 186; 1995 a. 305 ss. 2, 3; 1995 a. 448 s. 234; Stats. 1995 s. 961.36; 1997 a. 35 s. 339; 2011 a. 32.

961.37 961.37 Law enforcement duty.

961.37(1) (1) A law enforcement officer shall report as provided in sub. (2) if the law enforcement officer, while acting in an official capacity, does any of the following:

961.37(1)(a) (a) Encounters a situation in which the law enforcement officer reasonably suspects that a violation of this chapter involving a monitored prescription drug, as defined in s. 961.385 (1) (ag), is occurring or has occurred.

961.37(1)(b) (b) Encounters an individual who the law enforcement officer believes is undergoing or has immediately prior experienced an opioid-related drug overdose, as defined in s. 256.40 (1) (d), or a deceased individual who the law enforcement officer believes died as a result of using a narcotic drug.

961.37(1)(c) (c) Receives a report of a stolen controlled-substance prescription.