I split my time between Los Angeles and Milwaukee these days (I’m eligible to practice law in Wisconsin), and I often find myself working from my firm’s Milwaukee office depending on the month. Wisconsin is an incredibly interesting state when it comes to marijuana in that it is surrounded by states that have both adult use and medical cannabis legal regimes while it has nothing. Wisconsin’s state government is mainly controlled by Republicans who are anti-cannabis legalization. However, they seem to be alright with the concept of Wisconsin medical marijuana. It will be limited though and if the Republicans’ proposal goes through as presented (we don’t have an actual bill yet), Wisconsin will have state-run dispensaries with state-employed pharmacists.
Who Would Control Wisconsin Medical Marijuana
In successive press releases and briefings on January 8, Wisconsin Republicans announced the main highlights of their proposed Wisconsin Medical Marijuana program. The measure would create the Office of Medical Cannabis Regulation, the main regulator, within the Department of Health Services (DHS).
What Types of Products Would be Available to Patients
Smokeless options only in the Badger State. So, gummies, edibles, oils, topicals, etc. Wisconsin Republicans claim that Wisconsin’s medical marijuana program will be the most restrictive in the country, so there aren’t going to be a huge amount of product options for patients, in my opinion. And we’ll likely see an enumerated products list in the actual bill when it’s filed.
Wisconsin Medical Marijuana Dispensaries
In a first-of-its-kind move in the U.S., Wisconsin would have no more than five (5) state-owned and operated dispensaries. Long touted as a potential mechanism for curbing consumer overuse and abuse, government-owned cannabis operations have never really been tested in the U.S. on any real scale (although New Bonneville, WA gave it a shot with adult use back in 2018). DHS would be the one to select the locations of dispensaries, and one will go in each of the state’s five regions.
Borrowing from a handful of other states (like Minnesota and most recently Georgia), Wisconsin would mandate that state-employed pharmacists be the ones dispensing Wisconsin medical marijuana. I understand that the state wants this to be a completely legitimate medical program but while cannabis remains a federally illegal controlled substance, the state may actually be putting pharmacists at risk with the Drug Enforcement Administration (DEA) (whether employed by the state or not). Georgia pharmacies are feeling the heartburn from the DEA in this regard. Pharmacies are required to dispense low THC medical cannabis products in Georgia. And this begs the question about how potent Wisconsin medical cannabis products will be given that the DEA won’t allow pharmacy dispensing of anything containing more than .3% THC in line with the 2018 Farm Bill (or maybe the DEA won’t care about individual, state-employed pharmacists taking the risk anyway). If Wisconsin means business about its medical marijuana program, it should watch Georgia closely and also pay attention to any federal rescheduling to schedule III.
Cultivation and Manufacturing
Unlike state-run dispensaries, cultivation sites, and manufacturing premises can be owned and operated by the private sector. Canada actually has a similar model for legalization where dispensaries can be owned by provincial governments, but production, distribution, and manufacturing are done by private entities. While we know that these wholesalers will need to secure state licensing, we don’t know much else at this point since the bill hasn’t been filed yet.
Qualifying Conditions and Access to Wisconsin Medical Marijuana
Like every other medical cannabis state, patients will have to have specific qualifying conditions. Those qualifying conditions include cancer, epilepsy, post-traumatic stress disorder, glaucoma, severe chronic pain, muscle spasms, chronic nausea, multiple sclerosis, inflammatory bowel disease, Alzheimer’s disease, and terminal illnesses with less than one year of life expectancy. And patients will not be able to secure a prescription to access medical cannabis; instead, like every other state, due to the federal illegality of cannabis, patients will need to secure a recommendation from their healthcare providers. Enforcement in this area is going to be an evolution for Wisconsin. Other states have shown that including chronic pain in the qualifying conditions list can lead to the over issuance of recommendations by unscrupulous providers, and states have to weigh what kinds of licensed healthcare providers they’ll allow to participate and whether recommendations can be verbal or written to be valid.
Under republicans’ proposal, Wisconsin medical marijuana won’t be subject to any sales tax and republicans don’t see it as a major revenue generator anyway if it’s going to be a legitimate medical program.
Plan vs. Bill
Wisconsin Republicans have only revealed their plan for a Wisconsin medical marijuana bill. No legislation has been filed yet, but the Governor has indicated his support for this bill once it drops (and I’ll be watching in order to blog about the bill’s details). It seems that Wisconsin Republicans want medical marijuana to be incredibly strict and to never lead to adult use legalization. If Wisconsinites want adult use in the future then (since they’re surrounded by it anyway), it’s going to be quite a bit of a wait as Wisconsin does not have a voter initiative or direct voter referendum process in order to bypass the legislature to enact or reject laws (which isn’t new, it’s been that way since 1848 when Wisconsin became a state). That may sound bleak, but the fact that Wisconsin is even considering medical marijuana is a huge step forward.