2019 Wisconsin Statutes & Annotations
Chapter 94. Plant industry.
(1) Definition. In this section, “ hemp” 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, with a delta-9-tetrahydrocannabinol 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, 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.
(2) Regulation of hemp.
(a) Subject to the provisions under this section, a person may plant, grow, cultivate, harvest, produce, sample, test, process, transport, transfer, take possession of, sell, import, and export hemp in this state to the greatest extent allowed under federal law.
(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.
1. The department shall promulgate rules regulating the activities described in par. (a).
2. Except as provided under this section, rules promulgated under this 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.
2m. The department may establish all of the following:
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.
b. A procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9-tetrahydrocannabinol concentration levels of hemp.
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.
d. A procedure to comply with the enforcement provisions under subs. (2g) and (2m).
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.
3. The department shall promulgate rules, as the department determines to be necessary, to ensure the quality of hemp produced in this state, the security of activities related to hemp, and the safety of products produced from 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 hemp; and to enforce violations of those laws and rules.
4. The department shall require the payment of an initial fee from any person who produces hemp in this state equal to the greater of $150 or $5 multiplied by the number of acres on which the person will produce hemp, but not to exceed $1,000. The department may also impose an annual fee on any person whose activities related to 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.
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.
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).
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.
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:
a. Information relating to the locations of hemp production locations.
b. Personally identifiable information relating to a person who is lawfully engaging in activities related to 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.
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 hemp.
d. Any other information about activities related to hemp that could create a security risk if disclosed.
6. The department shall promulgate rules setting forth the factors to be considered when determining whether to refer a person for prosecution under s. 961.32 (3) (c).
(c) The department shall establish and administer a certification program, or shall designate a member of the Association of Official Seed Certifying Agencies or a successor organization to administer a certification program, for hemp seed in this state. A certification program under this paragraph shall include the testing and certification of delta-9-tetrahydrocannabinol concentrations in hemp plants from which certified seed is collected. Participation in the certification program shall be voluntary for producers of hemp. The department shall promulgate rules for the administration of any certification program established and administered by the department under this paragraph.
(d) The department of justice shall provide information to the department that the department has identified, by rule, as necessary to administer the provisions under this subsection.
(f) Before growing hemp, a hemp producer shall notify the department of the variety of hemp the producer intends to grow. A hemp producer may not grow hemp unless the department has approved the growth of that variety of hemp or the variety of hemp is certified under par. (c).
(2g) Negligent violations.
(a) This subsection applies only to hemp producers, and only if the department determines that the hemp producer has negligently violated this section or rules promulgated under this section, including by negligently doing any of the following:
1. Failing to provide a legal description of land on which the producer produces hemp.
2. If required under federal law, failing to obtain a license or other required authorization from the department or from the U.S. department of agriculture.
3. Producing Cannabis sativa L. with a delta-9-tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis or the maximum concentration allowed by law up to 1 percent.
(b) A hemp producer who negligently violates this section or rules promulgated under this section shall comply with a plan established by the department to correct the negligent violation, which shall include all of the following:
1. A reasonable date by which the hemp producer is required to correct the negligent violation.
2. A requirement that the hemp producer periodically report to the department on the compliance of the hemp producer with the department's plan for a period of not less than the following 2 years.
(c) A hemp producer who negligently violates this section or rules promulgated under this section 3 times in any 5-year period is ineligible to produce hemp for a period of 5 years beginning on the date of the 3rd violation.
(2m) Greater violations. If the department determines that a hemp producer has violated this section or rules promulgated under this section with a culpable mental state greater than negligence, the department shall immediately report the hemp producer to the U.S. attorney general and the department of justice.
(2p) Felony convictions. The department, with the assistance of the department of justice, shall, if required for federal authorization of this state's hemp program, conduct a background investigation of any person who applies to the department to produce hemp in this state, which shall include requiring the person to be fingerprinted on 2 fingerprint cards each bearing a complete set of the person's fingerprints, or by other technologies approved by law enforcement agencies. The department of justice shall submit any such fingerprint cards to the federal bureau of investigation for the purposes of verifying the identity of the person fingerprinted and obtaining records of his or her criminal arrests and convictions. No person may produce hemp in this state for 10 years following any felony conviction relating to a controlled substance under state or federal law unless the person held a valid license, registration, or other authorization to produce hemp under a pilot program of any state authorized by section 7606 of the federal agricultural act of 2014 on December 20, 2018, and the felony conviction occurred prior to that date.
(2r) False statement. Any person who materially falsifies any information contained in an application to participate in the hemp program established under this section is ineligible to participate in the program.
(2t) Access to cannabidiol products. Nothing in this section or rules promulgated under this section shall be construed as limiting a person's access to cannabidiol products under s. 961.32 (2m) (b).
(3) Pilot program. The department shall create a pilot program to study the growth, cultivation, and marketing of industrial hemp. The department shall promulgate rules to implement the pilot program consistent with the authority under sub. (2) (b). The department shall also do all of the following as part of the pilot program:
(a) Issue licenses that authorize the planting, growing, cultivating, harvesting, sampling, testing, processing, transporting, transferring, taking possession, selling, importing, and exporting of industrial 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. As part of the application process, the department shall require an applicant to provide the global positioning system coordinates of the centers of all fields on which the industrial hemp will be planted, grown, cultivated, or harvested. The department shall obtain a criminal history search from the records maintained by the department of justice for each applicant and may not issue a license if the applicant has ever been convicted of a criminal violation of the federal Controlled Substances Act under 21 USC 801 to 971, the Uniform Controlled Substances Act under ch. 961, or any controlled substances law of another state, as indicated in the information obtained from the criminal history search. A license issued under this paragraph does not expire unless the pilot program under this subsection expires or the license is revoked.
(b) Create a registration system that authorizes the sampling, testing, processing, transporting, transferring, taking possession, selling, importing, and exporting of industrial hemp. The department shall obtain a criminal history search from the records maintained by the department of justice for each person applying for registration and may not register an applicant who has been convicted of a criminal violation of the federal Controlled Substances Act under 21 USC 801 to 971, the Uniform Controlled Substances Act under ch. 961, or any controlled substances law of another state, as indicated in the information obtained from the criminal history search.
NOTE: Sub. (3) is repealed by 2019 Wis. Act 68 eff. 10-31-20.
(3m) Truth in labeling.
(a) No person may do any of the following:
1. Mislabel hemp or a hemp product.
2. Knowingly make an inaccurate claim about the content, delta-9-tetrahydrocannabinol concentration, quality, or origin of hemp or a hemp product in the course of transferring or selling the hemp or hemp product.
3. Knowingly sell at retail mislabelled hemp or hemp products.
(b) The department shall investigate violations of par. (a). The department, or any district attorney or the department of justice upon the request of the department, may on behalf of the state do any of the following:
1. Bring an action for temporary or permanent injunctive relief in any court of competent jurisdiction for any violation of par. (a).
2. Bring an action in any court of competent jurisdiction for the recovery of a civil forfeiture against any person who violates par. (a) in an amount not more than $1,000 for each violation.
(c) In addition to any other remedies provided by law, any person suffering a pecuniary loss because of a violation of par. (a) may bring a civil action to recover damages together with costs and disbursements, including reasonable attorney fees, and for equitable relief as determined by the court.
(3r) Private cause of action for grower contracts. Any contract to purchase hemp from a hemp grower in this state shall provide that payment will be made to the grower within 7 days of taking possession of the hemp, unless the grower voluntarily and knowingly agrees to a different method of payment. In addition to any other remedies provided by law, any person suffering a pecuniary loss because of a violation of this subsection may bring a civil action to recover damages together with costs and disbursements, including reasonable attorney fees, notwithstanding s. 814.04 (1), and for equitable relief as determined by the court.
(3w) Emergency rules. When promulgating rules under this section, the department may, as necessary, use the procedure under s. 227.24 to promulgate emergency rules. Notwithstanding s. 227.24 (1) (a) and (3), when promulgating emergency rules under this subsection, the department is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (c) and (2), initial emergency rules and subsequent emergency rules promulgated under this subsection remain in effect until the date on which permanent rules take effect. Notwithstanding s. 227.24 (1) (e) 1d. and 1g., for emergency rules promulgated under this subsection, the department is not required to prepare a statement of scope of the rules or to submit the proposed rules in final draft form to the governor for approval.
(4) Penalties. A person who violates any provision of this section, or an order issued or rule promulgated under this section, may be required to forfeit not less than $200 nor more than $5,000 or, for an offense committed within 5 years of an offense for which a penalty has been assessed under this section, may be required to forfeit not less than $400 nor more than $10,000.
History: 2017 a. 100; 2019 a. 68.