Chapter 961

subch. I of ch. 961 SUBCHAPTER I

DEFINITIONS

961.01 961.01 Definitions. As used in this chapter:

961.01(1g) (1g) “1,4-butanediol” means 1,4-butanediol as packaged, marketed, manufactured, or promoted for human consumption, but does not include 1,4-butanediol intended for use or consumption in or for mechanical, industrial, manufacturing, or scientific applications or purposes.

961.01(1r) (1r) “Administer”, unless the context otherwise requires, means to apply a controlled substance, whether by injection, inhalation, ingestion or any other means, to the body of a patient or research subject by:

961.01(1r)(a) (a) A practitioner or, in the practitioner’s presence, by the practitioner’s authorized agent; or

961.01(1r)(b) (b) The patient or research subject at the direction and in the presence of the practitioner.

961.01(2) (2) “Agent”, unless the context otherwise requires, means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. “Agent” does not include a common or contract carrier, public warehouse keeper or employee of the carrier or warehouse keeper while acting in the usual and lawful course of the carrier’s or warehouse keeper’s business.

961.01(2m) (2m) 

961.01(2m)(a) (a) “Anabolic steroid” means any drug or hormonal substance, chemically or pharmacologically related to testosterone, except estrogens, progestin, and corticosteroids, that promotes muscle growth. The term includes all of the substances included in s. 961.18 (7), and any of their esters, isomers, esters of isomers, salts and salts of esters, isomers and esters of isomers, that are theoretically possible within the specific chemical designation, and if such esters, isomers, esters of isomers, salts and salts of esters, isomers and esters of isomers promote muscle growth.

961.01(2m)(b) (b) Except as provided in par. (c), the term does not include an anabolic steroid which is expressly intended for administration through implants to cattle or other nonhuman species and which has been approved by the United States Secretary of Health and Human Services for such administration.

961.01(2m)(c) (c) If a person prescribes, dispenses or distributes such steroid for human use, such person shall be considered to have prescribed, dispensed or distributed an anabolic steroid within the meaning of par. (a).

961.01(3r) (3r) “Cannabidiol product” means a derivative or extract of the plant Cannabis sativa L. that contains cannabidiol and a delta-9-tetrahydrocannabinol concentration at a level without a psychoactive effect.

961.01(4) (4) “Controlled substance” means a drug, substance or immediate precursor included in schedules I to V of subch. II.

961.01(4m) (4m) 

961.01(4m)(a) (a) “Controlled substance analog” means a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance included in schedule I or II and:

961.01(4m)(a)1. 1. Which has a stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system of a controlled substance included in schedule I or II; or

961.01(4m)(a)2. 2. With respect to a particular individual, which the individual represents or intends to have a stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, narcotic or hallucinogenic effect on the central nervous system of a controlled substance included in schedule I or II.

961.01(4m)(b) (b) “Controlled substance analog” does not include:

961.01(4m)(b)1. 1. A controlled substance;

961.01(4m)(b)2. 2. A substance for which there is an approved new drug application;

961.01(4m)(b)3. 3. A substance with respect to which an exemption is in effect for investigational use by a particular person under 21 USC 355 to the extent that conduct with respect to the substance is permitted by the exemption; or

961.01(4m)(b)4. 4. Any substance to the extent not intended for human consumption before an exemption takes effect with respect to the substance.

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;