SB188: Bill Text

Analysis by the Legislative Reference Bureau

This bill makes several changes to current law relating to industrial hemp.

The bill changes current law in the following ways so that it is consistent with the 2018 federal farm bill:

1. Uses the term “hemp” instead of “industrial hemp” throughout current law and defines “hemp” as “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, with a delta-9-tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis or the maximum concentration allowed under federal law up to 1 percent, whichever is greater.” The bill also provides that “hemp” does not include a prescription drug product approved by the U.S. food and drug administration.

2. Prohibits any person from producing hemp in this state without a license from the Department of Agriculture, Trade and Consumer Protection if required under federal law.

3. Allows DATCP to establish procedures for all of the following: a) maintaining information relating to hemp production; b) testing for THC concentrations in hemp; c) disposing of hemp plants grown illegally; d) complying with enforcement provisions; and e) conducting annual inspections of hemp producers.

4. Provides that a hemp producer who negligently violates the provisions of the hemp program or DATCP's rules relating to the hemp program must comply with a plan established by DATCP to correct the violation. A compliance plan must include a reasonable date by which the hemp producer is required to correct the violation and must require the hemp producer to report to DATCP periodically, for not less than two years, on the status of the producer's compliance with the plan. A hemp producer who negligently violates the provisions of the hemp program or DATCP's rules relating to the hemp program may not be criminally prosecuted; a hemp producer who negligently violates those provisions three times in a five-year period is ineligible to participate in the hemp program for five years.

5. Requires DATCP to immediately report a hemp producer who violates the provisions of the hemp program or DATCP's rules relating to the hemp program with a culpable mental state that is greater than negligence to the Department of Justice and the U.S. attorney general.

6. Prohibits a person who materially falsifies any information contained in an application for the hemp program from participating in the hemp program.

7. Prohibits a person from producing hemp for ten years following a felony conviction relating to a controlled substance under state or federal law, unless the person holds a valid license under any state's hemp pilot program on the effective date of the bill.

8. Redefines “marijuana,” for the purposes of the controlled substances act, to exclude hemp.

9. Excludes THC contained in hemp from the list of Schedule I controlled substances.

10. Changes the current hemp pilot program under DATCP to a permanent program and sunsets the pilot program.

The bill also does the following relating to hemp:

1. Creates an appropriation from the general fund for the hemp program in the 2019-21 biennium, and increases funding to DATCP for the current 2018-19 fiscal year for the purchase of machinery and other assets for the hemp program.

2. Allows DATCP to establish lower license fees for hemp licenses issued for research or noncommercial purposes.

3. Allows DATCP to set criteria for approving persons to undertake any sampling and testing of hemp that DATCP requires by rule and to approve persons that meet the criteria.

4. Prohibits DATCP from requiring sampling and testing of hemp seedlings or clones intended to be planted that originate from certified hemp seed or from hemp seed or clones approved for growing by DATCP.

5. Requires DATCP to issue a fit for commerce certificate after hemp is tested, or if DATCP determines that hemp is not required to be tested.

6. Allows a person, whose personally identifying information relating to the hemp program is in DATCP's possession, to authorize the disclosure of that information.

7. Requires all hemp producers to notify DATCP of the variety of hemp the producer intends to grow, and prohibits a hemp producer from growing hemp unless DATCP has approved that variety of hemp for growing in this state or that variety of hemp has been certified by DATCP.

8. Prohibits a person from mislabeling hemp or a hemp product, knowingly making an inaccurate claim about the content, quality, or origin of hemp or a hemp product in the course of transferring or selling, or knowingly selling at retail mislabeled hemp or hemp products.

9. Requires contracts to purchase hemp from a hemp grower to provide for payment to the grower within seven days of taking possession of the hemp, unless the grower voluntarily and knowingly agrees otherwise.

10. Adds hemp to the list of agricultural products that may not be grown by, or grown on land owned by, a large corporation or trust.

11. Clarifies that THC contained in a CBD product is not a Schedule I controlled substance if the THC and CBD concentration is at a level without a psychoactive effect.

12. Changes the provision under current law that exempts a person from prosecution for selling, transferring, processing, harvesting, or taking possession of cannabis that is over the permissible THC concentration for hemp, so that the exemption applies to cannabis that had been tested and certified, by DATCP or a person approved by DATCP, as meeting the permissible THC concentration for hemp, but that is in fact above the permissible limit, if the person has no reason to believe that the certification is incorrect.

13. Provides that a person may not be prosecuted for temporarily possessing cannabis that is above the permissible THC concentration for hemp during the normal course of processing hemp if the cannabis is reconditioned or processed to meet the permissible THC concentration limit for hemp within a reasonable amount of time.

14. Provides that a person who purchases hemp or a hemp product may not be prosecuted if the product is no more than 0.7 percent over the permissible THC limit for hemp and if the person has no reason to believe that the product is over the permissible THC limit for hemp.

15. Removes THC from the definition of “restricted controlled substance” as applicable to the operation of a motor vehicle, an all-terrain vehicle, a utility terrain vehicle, an off-highway motorcycle, a snowmobile, or a motorboat and the handling of a firearm.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB188,1 Section 1 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table

SB188,2 Section 2 . 20.115 (7) (f) of the statutes is created to read:

SB188,4,5 20.115 (7) (f) Hemp. The amounts in the schedule for regulation of activities relating to hemp under s. 94.55.

SB188,3 Section 3. 20.115 (7) (gc) of the statutes is amended to read:

SB188,5,3 20.115 (7) (gc) Industrial hemp Hemp; program fees. All moneys received under s. 94.55 for regulation of activities relating to industrial hemp under s. 94.55.

SB188,4 Section 4 . 23.33 (1) (jo) 5. of the statutes is repealed.

SB188,5 Section 5 . 23.33 (4c) (a) 5. of the statutes is amended to read:

SB188,5,12 23.33 (4c) (a) 5. `Defenses.' In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine , or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

SB188,6 Section 6 . 23.33 (4c) (b) 4. b. of the statutes is amended to read:

SB188,5,20 23.33 (4c) (b) 4. b. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

SB188,7 Section 7 . 23.335 (1) (zgm) 5. of the statutes is repealed.

SB188,8 Section 8 . 23.335 (12) (a) 5. of the statutes is amended to read:

SB188,6,4 23.335 (12) (a) 5. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

SB188,9 Section 9 . 23.335 (12) (b) 5. of the statutes is amended to read:

SB188,6,12 23.335 (12) (b) 5. In an action under subd. 2m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

SB188,10 Section 10 . 30.50 (10m) (e) of the statutes is repealed.

SB188,11 Section 11 . 30.681 (1) (d) of the statutes is amended to read:

SB188,6,21 30.681 (1) (d) Defenses. In an action under par. (b) 1m. that is based on the defendant allegedly having a detectable amount of methamphetamine , or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

SB188,12 Section 12 . 30.681 (2) (d) 1. b. of the statutes is amended to read:

SB188,7,4 30.681 (2) (d) 1. b. In an action under par. (b) 1m. that is based on the defendant allegedly having a detectable amount of methamphetamine, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, or gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

SB188,13 Section 13 . 94.55 (title) of the statutes is repealed and recreated to read:

SB188,7,6 94.55 (title) Hemp.

SB188,14 Section 14 . 94.55 (1) of the statutes is amended to read:

SB188,7,19 94.55 (1) Definition. In this section, “industrial hemp” means the plant Cannabis sativa, or L. and any part of the that plant , including the seeds, having thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9-tetrahydrocannabinol concentration of no not more than 0.3 percent on a dry weight basis or the maximum concentration allowed under federal law up to 1 percent, whichever is greater. “Industrial hemp” includes a substance, material, or product only if it is designated as a controlled substance under the federal Controlled Substances Act under 21 USC 801 to 971 or the Uniform Controlled Substances Act under ch. 961 or both, as tested using post-decarboxylation or other similarly reliable methods. “Hemp” does not include a prescription drug product that has been approved by the U.S. food and drug administration.

SB188,15 Section 15 . 94.55 (2) (title) of the statutes is amended to read:

SB188,7,21 94.55 (2) (title) Regulation of industrial hemp.

SB188,16 Section 16 . 94.55 (2) (a) of the statutes is amended to read:

SB188,8,2 94.55 (2) (a) Subject to the provisions under this subsection section, a person may plant, grow, cultivate, harvest, produce, sample, test, process, transport, transfer, take possession of, sell, import, and export industrial hemp in this state to the greatest extent allowed under federal law.

SB188,17 Section 17 . 94.55 (2) (am) of the statutes is created to read:

SB188,8,17 94.55 (2) (am) The department shall issue licenses to hemp producers if hemp producers are required to hold a license to produce hemp under federal law and if the secretary of the U.S. department of agriculture has approved this state's hemp program. If the department issues such licenses, no person may produce hemp without a license from the department. Licenses from the department may authorize the planting, growing, cultivating, harvesting, producing, sampling, testing, processing, transporting, transferring, taking possession, selling, importing, and exporting of hemp. The department shall identify the requirements for applying for a license, approving or denying a license, and suspending or revoking a license, and shall identify the restrictions and obligations that apply to operating under a license. The department may restrict license eligibility based on a violation reported under sub. (2m). The department shall accept license applications throughout the calendar year. The department may set license terms and may set late fees for license renewals.

SB188,18 Section 18 . 94.55 (2) (b) 2. of the statutes is amended to read:

SB188,8,23 94.55 (2) (b) 2. Except as provided under subds. 3. to 6. and subs. (3) and (4) this section, rules promulgated under this paragraph section shall regulate the activities described in par. (a) only to the extent required under federal law, and in a manner that allows the people of this state to have the greatest possible opportunity to engage in those activities.

SB188,19 Section 19 . 94.55 (2) (b) 2m. of the statutes is created to read:

SB188,8,25 94.55 (2) (b) 2m. The department may establish all of the following:

SB188,9,3 a. A practice to maintain relevant information regarding land on which hemp is produced in this state, including a legal description of the land, as defined by the department, for a period of not less than 3 years.

SB188,9,5 b. A procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9-tetrahydrocannabinol concentration levels of hemp.

SB188,9,7 c. A procedure for the effective disposal of plants, whether growing or not, that are produced in violation of this section, and products derived from those plants.

SB188,9,9 d. A procedure to comply with the enforcement provisions under subs. (2g) and (2m).

SB188,9,12 e. A procedure for conducting annual inspection of, at a minimum, a random sample of hemp producers to verify that hemp is not produced in violation of this section.

SB188,20 Section 20 . 94.55 (2) (b) 3. of the statutes is amended to read:

SB188,9,21 94.55 (2) (b) 3. The department shall promulgate rules, as the department determines to be necessary, to ensure the quality of industrial hemp grown or processed produced in this state, the security of activities related to industrial hemp, and the safety of products produced from industrial hemp, including any necessary testing; to ensure that the state's hemp program complies with federal law and to obtain and maintain any required federal approval of the state's hemp program; to verify adherence to laws and rules governing activities related to industrial hemp; and to enforce violations of those laws and rules.

SB188,21 Section 21 . 94.55 (2) (b) 4. of the statutes is amended to read:

SB188,9,25 94.55 (2) (b) 4. The department shall require the payment of an initial fee from any person who plants, grows, or cultivates industrial produces hemp in this state equal to the greater of $150 or $5 multiplied by the number of acres on which the person will plant, grow, or cultivate industrial produce hemp, but not to exceed $1,000. The department may also impose an annual fee on any person whose activities related to industrial hemp are regulated by the department under this paragraph, in an amount not to exceed an amount sufficient to cover the costs to the department of regulating those activities, as determined by the department by rule. The department may establish lower initial and annual fees for licenses issued for research or noncommercial purposes.

SB188,22 Section 22 . 94.55 (2) (b) 4g. of the statutes is created to read:

SB188,10,12 94.55 (2) (b) 4g. The department may set criteria for approving persons to undertake any sampling and testing required by the department by rule. The department shall approve persons that meet the criteria to the extent allowed under federal law.

SB188,23 Section 23 . 94.55 (2) (b) 4m. of the statutes is created to read:

SB188,10,18 94.55 (2) (b) 4m. When sampling and testing a crop of hemp, the department is not required to sample and test every growing location or every strain. The department may not require the sampling and testing of hemp seedlings or clones that are intended to be planted and that originated from hemp seed certified under par. (c) or from hemp seed or clones approved for growing under par. (f).

SB188,24 Section 24 . 94.55 (2) (b) 4s. of the statutes is created to read:

SB188,10,24 94.55 (2) (b) 4s. Following any required sampling and testing, or if the department determines that sampling and testing are not required, the department shall issue a certificate that states that the hemp has been tested or is not required to be tested for delta-9-tetrahydrocannabinol concentration and is in compliance with this section and rules promulgated under this section.

SB188,25 Section 25 . 94.55 (2) (b) 5. of the statutes is amended to read:

SB188,11,5 94.55 (2) (b) 5. The department shall ensure that any of the following information that is in the department's possession relating to a licensee or applicant for a license under this section is confidential and not open to public inspection or copying under s. 19.35 (1), except that it shall be made available to a law enforcement agency or law enforcement officer:

SB188,11,7 a. Information relating to the locations of industrial hemp fields and processing locations production locations.

SB188,11,11 b. Personally identifiable information relating to a person who is lawfully engaging in activities related to industrial hemp , unless the person elects, during the application and licensing or renewal process, for the department to release any or all of the person's personally identifiable information.

SB188,11,14 c. Information obtained about an individual as a result of any criminal history search performed in relation to authorizing the individual to engage in activities related to industrial hemp.

SB188,11,16 d. Any other information about activities related to industrial hemp that could create a security risk if disclosed.

SB188,26 Section 26 . 94.55 (2) (c) of the statutes is amended to read: