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?
As Wisconsin’s hemp cultivation scene is now controlled entirely by the USDA Final Rule on hemp production, there are no post-production hemp 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. The current Wisconsin-based retailers that sell these intoxicating hemp products are relying wholesale on the 2018 Farm Bill loophole 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 no regulatory 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.
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