Marijuana is illegal in Wisconsin. What about substances like delta-8, delta-9, delta-10, and CBD?
Years after the federal legalization of hemp-derived delta-9, Wisconsinites across the state have started to see advertisements for “legal weed.” And once they take a look into these ads, they’re sometimes surprised to see that various companies across the United States are prepared to ship these items right to Wisconsin. But plenty of smoke and mirrors are usually at play, and these companies typically use generic, confusing terms such as “weed,” “legal weed,” or “the good stuff” (our favorite).
What are these companies actually selling, and how is this possible? The short answer is that these ads and the products they’re selling are federally legal. These products are (or should be) all derived from hemp containing under 0.3% THC by dry weight. This blog post digs into the details of this issue to provide Wisconsinites answers to questions they may have regarding this broad change in the law.
On the front end, however, it’s important to note that as of March 22, 2024, marijuana remains illegal in Wisconsin. In certain locations, such as Madison, WI, local law enforcement chooses not to enforce simple possession of marijuana cases, so long as no aggravating circumstances are also present. Other cities throughout the state (such as Milwaukee, WI) treat a first offense as a ticketable ordinance violation without criminal penalties. And finally others, such as Wausau, WI, will charge you with a misdemeanor if found in possession of marijuana. Second offense possession of marijuana is a felony in all of Wisconsin and can result in a sentence that sends you to prison.
If you’re facing any sort of drug charges, contact Van Severen Law Office, S.C. at (414) 270-0202 to see how we can help. Our firm focuses 100% of its resources and personnel on helping defendants throughout Wisconsin facing criminal charges.
How it all started: Agricultural Improvement Act of 2018 (2018 farm bill)
Farm bills in the United States are comprehensive omnibus bills that are passed every five to six years. They cover agricultural and food policy for the federal government. The 2018 Farm Bill (Agricultural Improvement Act of 2018) legalized industrial hemp and its derivatives on a federal level. Specifically, hemp plants containing less than 0.3 percent THC (tetrahydrocannabinol) were removed from the definition of marijuana in the Controlled Substances Act. 21 U.S.C. 802(16)(B), in its new form, states:
(B) The terms “marihuana” and “marijuana” do not include –
i. hemp, as defined in section 1639 of title 7; orii. the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
(1) HEMP.—The term ‘‘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.
What about the tetrahydrocannabinol derived from hemp?
So, the law no longer considers hemp to be marijuana, but what about the intoxicating compounds found within hemp? Even if it’s only 0.3% of the dry weight? Section 12619 of the 2018 Farm Bill amended section 102(16) of the Controlled Substances Act (21 U.S.C. 812) as follows:
(b) TETRAHYDROCANNABINOL.—Schedule I, as set forth in section 202(c) of the Controlled Substances Act (21 U.S.C. 802(16)), is amended in subsection (c)(17) by inserting after ‘‘Tetrahydrocannabinols’’ the following: ‘‘, except for tetrahydrocannabinols in hemp [emphasis added] (as defined under section 297A of the Agricultural Marketing Act of 1946)’’.
What does this change? This modification focuses on tetrahydrocannabinol, which was a prohibited, controlled, and scheduled substance when derived from marijuana. The new law removes THC derived from hemp from the list of schedule I substances.
In other words, the tetrahydrocannabinols found in hemp are no longer scheduled, illegal substances. For some curious reason, the tetrahydrocannabinols in marijuana, even though they’re the same (albeit different concentrations) remain illegal. So, psychoactive THC is legal, so long as it’s hemp-derived.
How does hemp compare to marijuana? Does it contain psychoactives such as delta-8 and delta-9?
Hemp and marijuana both belong to the same species, cannabis sativa. The major difference is that hemp is a mixture of male and female cannabis plants, and its flowers produce less than 0.3% THC. Hemp plants are taller and contain more fiber in their stalks, which is why they’re often used to make textiles and are sometimes included in various forms of reinforced concrete. The marijuana plant is shorter, resembles a bush, and has leaves and buds surrounding the plant’s body. The THC content in marijuana by dry weight ranges between 0.3% and around 30%.
This might seem confusing. What happens when hemp is over 0.3% THC? That’s not hemp anymore. Instead it’s non-hemp cannabis, or marijuana, and is still illegal in Wisconsin. Think of the difference between marijuana and hemp as a classification issue. They’re the same plant. One just has a lot more THC content than the other.
Delta-9 THC is the main psychoactive component of cannabis. There are 483 known compounds in the plant, including at least 65 other cannabinoids, such as cannabidiol (CBD). Delta-9 THC, cannabidiol, delta-8 THC, and cannabinol (CBN) are four of the most studied and recognized compounds in the plant. Various other tetrahydrocannabinol, such as delta-8 and delta-10 are also psychoactive, but impact users on a different, milder, basis.
What is cannabidiol, and does it contain psychoactives such as delta-9?
Cannabidiol, known commonly as CBD, was the first cannabis product to legally arrive in Wisconsin. CBD is not impairing and using it will not cause you to get “high.” Importantly, CBD can be derived from either hemp or marijuana. It doesn’t contain any tetrahydrocannabinol.
While CBD won’t mess you up, it certainly does have a few important uses. Frequently CBD is used to treat chronic pain, anxiety, inflammation, and insomnia. One study showed that CBD works by affecting receptors of the endocannabinoid system, which helps regulate pain, mood, and memory, in addition to helping many other physiological and cognitive functions.
Cannabidiol does not grow naturally. It’s derived from the cannabis plant, but the leaves are either soaked or have solvents run through them. This strips the cannabinoids from the plant. Once the process is complete, a liquid remains that is then put through an evaporation process including heating. That leaves the cannabinoid concentrates in an oil form.
Many products advertised as containing THC also contain CBD. Others contain one or the other and various other substances.
What about synthetic THC? Is is delta-8 or delta-9?
K2 and Spice are two of many trade names used for synthetic designer drugs intended to mimic THC. Frequently, these synthetic drugs are often marketed and sold under the guise of “herbal incense” or “potpourri.”
State public health and poison centers have issued warnings in response to adverse health effects associated with abuse of herbal incense products containing these synthetic cannabinoids. These adverse effects included tachycardia (elevated heart rate), elevated blood pressure, unconsciousness, tremors, seizures, vomiting, hallucinations, agitation, anxiety, pallor, numbness, and tingling. This is in addition to the numerous public health and poison centers which have similarly issued warnings regarding the abuse of these synthetic cannabinoids.
Synthetic cannabinoids are powdered chemicals that are usually mixed with solvents and sprayed onto herbs and sold in colorful, appealing packets. The exact composition of these chemicals constantly changes in order to stay ahead of updates in the law.
The 2018 Farm Act didn’t address synthetic THC.
Wisconsin’s response to the 2018 farm bill:
So far we’ve discussed federal laws regarding hemp. But does Wisconsin itself prohibit the use or possession of hemp, delta-8, delta-9, and delta-10? On the front end, it’s important to recognize that the 2018 Farm Bill does not preempt any state law that regulates hemp production more stringently or prohibits its production in that state. In other words, states can regulate and suppress hemp production more than federal law. However, states may not prohibit the transport or shipment of hemp or hemp products into or through those states.
Section 961.01(14) of the Wisconsin Statutes defines marijuana. It explicitly states that “marijuana” does not include hemp (defined in section 94.55 of the Wisconsin Statutes (and mirroring the federal definition)). Further, section 961.14(4)(t)(3) of the Wisconsin Statutes indicates that tetrahydrocannabinols found within hemp are not a Schedule 1 substance.
Wisconsin laws mirror the changes that the 2018 farm bill created. Your ability to use, possess, and enjoy hemp-derived THC products is legal in Wisconsin.
A warning: drunk driving and cannabis use:
Certain substances are legal to use and possess, but when used too much or in the wrong situation, lead to criminal liability. Think of operating while intoxicated or operating with a prohibited alcohol concentration. It’s illegal to operate your vehicle while under the influence of alcohol, or with a blood alcohol concentration of .08. What about operating your vehicle while under the influence of THC?
Section 346.63 of the Wisconsin Statutes prohibits drunk driving and driving under the influence of an intoxicant. Section 346.63(1)(d) of the Wisconsin Statutes deals specifically with intoxicated driving and THC, GHB, and meth. The law is clear: any detectible amount of THC (specifically delta-9) in a driver’s blood is operating while intoxicated, and will lead to criminal charges. In no circumstance can drivers in Wisconsin operate their vehicles while using THC. So long as it remains in your blood, it is illegal to operate a motor vehicle.
Delta-9 THC remains in the blood of moderate users for approximately 3 days. Heavy users may have a detectable amount of THC in their blood for up to 29 days. Even if you didn’t use THC the day you’re driving, or the day before, you still could be arrested for operating while intoxicated.
The zero tolerance policy regarding THC and driving applies to various other criminal charges, such causing an injury while operating while intoxicated and homicide by intoxicated use of a vehicle. Any amount of THC in your blood is enough to open the door to these criminal charges.
Can cops tell the difference between hemp and marijuana?
Things always get difficult once the cops show up. So what happens when they find legal hemp in your car? Unfortunately, hemp and marijuana cannot be distinguished by appearance, odor, or by the Duquenois-Levine color test (a cannabis screening test).
A new test called the Cannabis Typification test (also called 4-aminophenol color or 4-AP test) may assist in this determination. Importantly, the 4-AP test cannot determine the concentration of delta-9 THC. Instead, the results of the test show in colors, and those colors are based on the ratios of CBD and THC present in the tested material. A positive result for hemp (CBD rich cannabis) will show as pink or red. A positive result for marijuana (THC rich cannabis) will show as blue. Inconclusive tests show a purple color.
Cops only use the 4-AP test for plant material. They cannot use it on edibles, such as gummies. But even if they could, the results would likely show purple, as many edibles are either straight THC or a combination of THC and CBD. Cops cannot differentiate between a legal, hemp-derived gummy and those created from marijuana.
While this isn’t fun advice, it’s safe advice: if you’re going to use hemp, delta-8, delta-9, or any other legal substance that resembles marijuana, do it in the safety and privacy of your own home or apartment. If you’re in public and have hemp on your person or in your vehicle, keep it in the container you purchased it in. While even this advice won’t save you from conniving police determined to put you in handcuffs, it will help a criminal defense attorney defending against any potential criminal charges.
Facing criminal charges involving THC?
Van Severen Law Office, S.C. is a criminal defense law firm based in Milwaukee, WI. We have satellite offices throughout the state and regularly represent individuals in various counties. The laws regarding marijuana, hemp, THC, and all of the associated substances have changed quickly. It’s important to make sure that you’re doing your best to operate within the confines of the law. But we all make mistakes. Our criminal defense lawyers recognize this and are standing by to help.
We offer free consultations to potential clients. Contact us 24/7 at (414) 270-0202 to see how we can help.