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America’s Dairyland does not currently have any form of either medical or adult-use cannabis. The state has tried and failed at least a couple of times on convening medical cannabis legislation (see here on the latest attempt earlier this year). At the same time, Wisconsin is surrounded by three states that have both medical and adult-use cannabis programs (Minnesota, Illinois, and Michigan), with Canada to the north, which legalized cannabis in 2018.

Despite its resistance to legalizing cannabis for medicinal or adult-use purposes, Wisconsin may be one of the states that inevitably embraces intoxicating hemp products (maybe similar to what Minnesota has done related to THC beverages).

Wisconsin and the Farm Bill(s)

Wisconsin is a traditionally hemp-friendly state. The Agricultural Act of 2014 authorized states to operate research-based pilot programs relating to hemp production, and Wisconsin commenced its own Hemp Pilot Research Program in 2017 administered by the Wisconsin Department of Agriculture, Trade and Consumer Protection (“DATCP”). At its height, the program had hundreds of participants who sought and secured licenses to grow and process hemp.

After the passage of the 2018 Agricultural Improvement Act (the “2018 Farm Bill“), Wisconsin hemp processors were allowed to “store, handle and convert industrial hemp” into a “marketable form” under Wisconsin law, and the Wisconsin Attorney General advised at the time that licensed processors could use industrial hemp to produce cannabidiol (CBD) and that CBD produced as part of the pilot program, or another state’s pilot program, could be legally sold at Wisconsin retail locations.

In 2022, Wisconsin’s hemp program fully transitioned to the United States Department of Agriculture (“USDA”). Now, Wisconsin simply defers to the USDA’s Final Rule on hemp production and Wisconsin hemp producers are licensed directly by the USDA.

Intoxicating Hemp Under the Farm Bill

Due to the passage of the 2018 Farm Bill, hemp and all of its derivatives (containing no more than .3% THC) are no longer illegal schedule I controlled substances pursuant to the Controlled Substances Act (CSA) (even arguably if they contain other intoxicating cannabinoids). Note though that synthetically derived (rather than naturally occurring) intoxicating cannabinoids remain illegal controlled substances on the CSA. In turn, the Farm Bill technically allows for hemp-derived intoxicating cannabinoids so long as the pre-harvest hemp contains less than .3% THC. The broad definition of hemp in the 2018 Farm Bill (combined with pre-harvest testing requirements) created an entire consumer products industry dedicated to intoxicating hemp, with “THC beverages” leading the charge. This is partly due to the fact that, while the USDA oversees hemp production, there is no federal agency that currently controls post-production intoxicating hemp processing and its resulting products (although the U.S. Food and Drug Administration and the Federal Trade Commission have become increasingly vocal about intoxicating hemp that’s packaged and label to be attractive to minors or that copycats popular food products).

Intoxicating Hemp in Wisconsin: A Blank Slate?

In Wisconsin, food is not considered to be adulterated if it contains hemp so long as the resulting product is made and sold only in Wisconsin. Further, hemp-infused food in Wisconsin only needs to meet a very narrow and elementary set of “truth in labeling” laws and weights and measurements labeling requirements. And as Wisconsin’s hemp cultivation scene is now controlled entirely by the USDA Final Rule on hemp production, there are no post-production intoxicating hemp-specific processing laws or regulations on its books despite the proliferation of intoxicating hemp products within its borders. Across the country, in response to the 2018 Farm Bill, states are responding in various ways. For example, California recently banned all hemp products with any “detectable amount of total THC”, which essentially means all intoxicating hemp products meant for human consumption are barred. New Jersey, on the other hand, pushed intoxicating hemp product processing and sales into its existing state-licensed cannabis industry. In contrast to that, Minnesota regulates intoxicating hemp, allowing it in consumer products, including beverages (which have become wildly popular across the nation, including in Wisconsin already–see here, here, and here for instance).

Wisconsin finds itself at a crossroads where the state has no specific regulation regarding intoxicating hemp consumer products (other than meeting existing food and safety requirements and hemp sources complying with the 2018 Farm Bill). The current Wisconsin-based retailers that sell these intoxicating hemp products are essentially relying wholesale on the 2018 Farm Bill and are likely engaged in industry best practices when it comes to product production and distribution, sourcing their intoxicating hemp from hopefully USDA-compliant cultivators. They otherwise currently have little to no regulatory-specific oversight, which in a multitude of states has resulted in a variety of consumer safety issues such as product content concerns, mislabeling and misbranding, no age restrictions on purchases, and being attractive to children.

What is the Future of Intoxicating Hemp in the Badger State?

Congress renewed the 2018 Farm Bill through September 30 of this year. That date came and went without any passable version of the next farm bill, so the 2018 Farm Bill is now expired though some of its spending programs will continue through the end of the year. The big question for the intoxicating hemp industry is whether Congress will try to close the loophole or regulate these types of products in 2025. In the interim, at least one piece of federal legislation has been proposed that would regulate intoxicating hemp nationwide, the Cannabinoid Safety and Regulation Act. Also in the meantime, states are picking up the mantle on either regulating or banning intoxicating hemp, and Wisconsin hangs in the balance. The upshot is that, if Wisconsin seeks to regulate intoxicating hemp products, it will now be able to borrow laws and regulations from other states that are trying their hand at the same. And if Wisconsin seeks to ban these products altogether, it also now has the legal roadmap to do so from other states.

Contact Us

These are complicated and nuanced legal issues with potentially large changes on the horizon both federally and at the state level.

For more information about the manufacturing or sale of intoxicating hemp products in Wisconsin, contact Hilary Bricken, Jeffrey O’Brien, or your Husch Blackwell cannabis attorney to help you navigate the changing legal landscape and its implications for cannabis, marijuana, and hemp businesses.

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Photo of Hilary Bricken Hilary Bricken

With a passion for organizational growth, Hilary advises clients in the cannabis, healthcare, and life sciences spaces on transactions, regulatory compliance, governance matters, and other corporate needs.

Hilary likes being a dealmaker: she values building collegial relationships with clients and other attorneys, and

With a passion for organizational growth, Hilary advises clients in the cannabis, healthcare, and life sciences spaces on transactions, regulatory compliance, governance matters, and other corporate needs.

Hilary likes being a dealmaker: she values building collegial relationships with clients and other attorneys, and she loves helping clients create value and business opportunities. She also appreciates the in-depth strategies that transactions rely on.

Much of Hilary’s practice is devoted to mergers, acquisitions, and other transactions, as well as to serving as first point of outside counsel for certain clients. She also assists with entity formation and the drafting of various governance documents and asset portfolio management. In addition, Hilary advises clients on industry-specific regulatory compliance.

Hilary’s experience with the cannabis industry dates to 2010, when she began assisting medical cannabis providers with business questions. It was immediately clear to her that this emerging, growing industry had a massive need for corporate counsel, and she has advised cannabis clients—including many major national and international companies—ever since. Her experience includes cannabis licensing; marijuana and industrial hemp regulatory compliance; mergers and acquisitions; corporate and transactional matters, including negotiating management services agreements, fee slotting agreements, cultivation supply agreements, and intellectual property licensing agreements; receiverships; dissolution and wind downs; and financing and debt restructuring. In 2023, Hilary joined Husch Blackwell out of enthusiasm for the firm’s deep bench of innovators in the cannabis and healthcare space.

Hilary also devotes a significant portion of her practice to healthcare clients, including physicians, physician groups, and medical services organizations, and she represents clients regarding the off-label application of controlled substances.

Known for offering a commonsense business approach to legal questions, Hilary never gives legal advice in a vacuum. She provides clients with definitive guidance that has practical applications, adding value and supporting business goals.

Jeffrey O'Brien

A corporate and transactional attorney who thinks holistically about clients’ businesses, Jeffrey often serves clients for decades.

Jeffrey began his legal career at a firm that focused on both real estate and traditional corporate transactions, and he quickly discovered that he thrived on

A corporate and transactional attorney who thinks holistically about clients’ businesses, Jeffrey often serves clients for decades.

Jeffrey began his legal career at a firm that focused on both real estate and traditional corporate transactions, and he quickly discovered that he thrived on closing deals. Almost a quarter century later, he still finds it exciting and rewarding to get a client’s deal across the finish line, and he loves seeing the business growth that results—especially when it’s tangible real property that can be visited in real life.

Primarily a business attorney with a focus on corporate transactions, Jeffrey regularly oversees mergers, acquisitions, joint ventures, and private securities offerings. He also frequently handles ancillary real estate deals, including commercial leasing, land acquisition, loan documentation, purchase and sale of residential and commercial property, and resolution of title matters. While Jeffrey supports clients in a variety of industries, he has built a strong niche practice in the hospitality realm, often representing restaurants, bars, and breweries. After cannabis was partially legalized in Minnesota in 2023, he began representing businesses in the burgeoning industrial hemp and cannabis industries as well and has become a leading attorney in the Minnesota cannabis world.

Jeffrey works with clients who have branches, offices, and restaurants across the country, and he joined Husch Blackwell in 2024 to ensure nationwide coverage for the organizations he represents. He handles deals with values in the low millions up to hundreds of millions—but he treats every deal like a major deal, because he knows no transaction is small or insignificant to the client. Jeffrey is known for going beyond an individual transaction and thinking holistically about the client’s business and its future: he structures deals and gives advice with an eye to the organization’s long-term goals, often all the way to an eventual exit strategy. His ability to serve as a business partner draws clients back again and again, and Jeffrey has served many of the same clients for nearly 20 years.