Cannabis is virtually unregulated in Wisconsin. Will that change?

In late October, a curious advisory went out from Public Health Madison & Dane County, warning residents of the dangers of a pizza inadvertently contaminated with THC oil at a restaurant in Stoughton. 

The news led to no shortage of online guffaws, even as 27 people were taken to the emergency room after unwittingly ingesting the THC. 

When Phillip Scott saw the news, however, he had deeper concerns.  

Demand for legal cannabis products in Wisconsin, which are allowed under federal law, has spiked in recent years. That includes products derived from the hemp plant, including delta-8, delta-9, THCA and other close cousins of marijuana. 

But the industry is almost entirely unregulated by the state. Scott, who leads Wisconsin Hemp Farmers and Manufacturers, a trade group for the hemp industry, wants that to change.  

Scott is worried the pizza contamination and other such incidents along with a lack of government oversight could damage the industry’s standing in Wisconsin. 

“Someone is going to die and then we’re going to be sued in the Wisconsin Supreme Court by that family as an industry and … we’re going to set the precedent for the rest of the country,” said Scott, who also co-owns Crone Apothecary in Madison. “And we do not want to do that, because that’s an embarrassment.” 

This year, Dane County EMS received over 300 calls for adverse effects related to consuming cannabis products. Nearly a fifth of those were for teenagers and younger children, who may have mistakenly ingested a gummy thinking it to be candy or accidentally consumed too much of a legal THC product. 

While the overall rates of cannabis use among young people are holding steady, the increase in young people vaping legal THC products has risen considerably, health officials report. All the while, there is nothing in Wisconsin law preventing a store from selling cannabis to someone under age 21. 

Democratic and Republican legislators have agreed that more regulation is needed. But the debate over cannabis — and whether to legalize medical or recreational marijuana in Wisconsin — has long vexed state lawmakers, who have not found a way to regulate the products without stamping out a growing industry. 

Legal cannabis products “created an access point for folks to seek something that might help them until we figure out cannabis legalization,”  said state Rep. Darrin Madison, D-Milwaukee, who has worked on legislation that would legalize medical marijuana. “Due to the fact that it’s lacking those regulatory standards, it also created a new problem for states to have to deal with. And now we’re trying to face it head on.” 

Wisconsin hemp law opens a door 

Products containing hemp — or anything extracted from the plant, which is highly similar to marijuana — became legal nationwide in 2018, as long as they contain less than 0.3% THC, or tetrahydrocannabinol, the psychoactive component in marijuana. 

In the years since, developments in the industry have been nearly continuous, Scott said. 

In 2019 and 2020, demand centered on delta-8 products, which contain a type of compound similar to the THC found in marijuana but with more muted effects.  

Then retailers began emphasizing delta-9, which mirrors the THC in marijuana. Provided it is extracted from legally grown hemp, these types of products are legal in Wisconsin. 

And then there is THCA, which looks like an illegal cannabis flower but is perfectly allowable. When burned it gives an effect identical to delta-9. Its legality has been considered by some to be a loophole for legal weed. 

The explosion of demand for these products, particularly in a state like Wisconsin without legalized marijuana, has transformed hemp-derived cannabinoids into a multibillion-dollar industry nationally. 

In Dane County alone there are dozens of stores selling delta-8, delta-9 and THCA. That’s on top of the convenience stores, smoke shops and other vendors selling cannabis-infused drinks and other products. 

“This is kind of popping up all over the place, and it’s hard to keep track of where they are,” said Ryan Sheahan, public health program coordinator for Public Health Madison & Dane County. “And there’s no licenses either, right? So you can open up a shop wherever you want.” 

In the case of the Stoughton pizza shop, a can of delta-9 product was left in a shared industrial kitchen and a worker didn’t see a label on the cap that the oil contained THC before adding it to food. 

There are few Wisconsin-specific requirements for what must be disclosed on the packaging of cannabis products. There are even fewer restrictions on how the products are stored in shops or marketed to consumers. 

“Without clear regulations, some businesses take shortcuts, resulting in inconsistent dosages and questionable product quality,” said Bob Hickey, executive director of cannabis advocacy for the group Let’s Legalize Wisconsin, which argues in favor of legal marijuana. 

The Wisconsin Department of Agriculture, Trade and Consumer Protection stopped licensing and regulating hemp producers in 2022, passing those duties off to the U.S. Department of Agriculture.  

“This whole thing is tough because there’s no guidance from the state,” Scott said. “There’s nothing for our (consumer protection department) to be able to lean on to enforce. And we’re all kind of sitting here going, ‘Well, how do we do this?’” 

Amid this trend, public health officials decided to dig deeper to get a sense of how the rise in cannabis products has affected the Madison area. 

More teens using legal cannabis products 

Of 68 stores recently surveyed by the local health department, most had products that resembled candy, including one that was a dead ringer for a bag of Nerds. That could lead children to inadvertently eat them, believing them to be a sweet treat, Sheahan said.  

Unlike alcohol or tobacco, Wisconsin has no restrictions on how old you must be to buy cannabis products. Over 70% of the stores surveyed in Dane County say they check IDs and won’t sell to anyone under 21, but this is not compulsory. Sheahan noted that some didn’t verify age before giving out free samples. 

This lack of regulation comes as public officials track an increased interest in cannabis products among young people. 

In 2021, public health and education officials in Dane County found 6% of 12th graders had vaped THC products. This year, they found the rate had more than tripled to 19%. 

And there is nothing statewide requiring shops selling cannabis products to remain a certain distance from schools or day care centers like some other stores. 

Madison requires vape shops to be at least 1,000 feet from a school, but doesn’t have zoning restrictions for stores specifically selling cannabis. Currently, a handful of stores in Dane County selling THC products sit at least that close to a school, with two-thirds of the shops surveyed a half mile or less from an educational institution. 

“When you introduce a substance like THC that can cause psychoactive results … it’s really essentially rewiring that adolescent brain to be more vulnerable in the future,” Sheahan said. 

Youth access isn’t unique to Dane County. In central Wisconsin, public health officials in Wood County were seeing similar trends. Ashley Normington, a public health strategist for the county, recalls going to county board members to discuss the rise of hemp-derived products at schools in the Wisconsin Rapids area. 

“When we shared some of that information with our local policymakers, they had no idea,” Normington said. “They didn’t know that these products existed and just how potent some of the products are.”  

The response was something no local government in Wisconsin had tried: regulation for cannabis products, like delta-8. In 2022, Wood County became the first and only county to require buyers to be at least 21 years old and to set zoning requirements dictating where stores could be placed. 

Officials in places like Dane County have taken notice. And while Normington said more study is needed to determine whether the restrictions have curbed the habits of young people, she said the process of implementing the rules has served as an effective educational tool, raising awareness of the presence and potency of these new products. 

The policies have been broadly popular, Normington said, without the level of pushback from businesses that officials expected. 

“The focus was on keeping youth safe,” she said. “No one can argue that this is something that youth really shouldn’t be using (given) that we don’t know a lot about some of these products, and they are unregulated.” 

State legislators grapple with regulations 

A state panel of public health and substance abuse experts published a report earlier this year calling for a 21 and older age requirement in Wisconsin to purchase products containing THC, mirroring a similar push that occurred with tobacco sales.  

Hickey, from Let’s Legalize Wisconsin, has been involved in creating the Wisconsin Cannabis Safety Alliance, which is working to create greater regulation and also to educate consumers and policymakers on the evolving landscape for cannabis. 

The idea, he said, is collaborating within the cannabis industry, even if the debate over legalization stalls in the state Capitol.  

On top of a 21-and-older law for psychoactive THC products, Hickey wants mandatory third-party testing to verify the potency and quality of a product, as well as more standardized labeling requirements and safety warnings. 

“Rather than centering the debate on legalization, the conversation should focus on protecting consumers, creating accountability, and supporting the businesses and communities involved,” Hickey said. 

But those restrictions would still have to be passed by the state Legislature, and agreement there has thus far proven elusive. 

Assembly Speaker Robin Vos, R-Rochester, has been critical of THC products, saying he believes a statewide ban is appropriate. More recently, he said he plans to advocate for banning sales to people younger than 21. 

“I don’t think delta-8 should be allowed to be used by kids,” Vos told the Milwaukee-area TV station WISN 12 in November, adding that its current legal availability is “wrong for our state.” 

Darrin Madison, the Milwaukee Democrat in the Assembly, said he believes regulation should happen as part of a broader effort to legalize, tax and oversee medical marijuana. Lawmakers have been unable to reach an agreement on that issue, either. 

“We need the regulation, but we also should be finally having a conversation about giving access to the product, access to the care (people are) really seeking,” he said. 

This debate in Wisconsin is occurring against the backdrop of substantial uncertainty at the federal level. 

The Farm Bill, the legislation that opened the doors to a range of legal cannabis products, has not been renewed by Congress, as it typically is every five to seven years. 

Criticism over the so-called loophole in the 2018 Farm Bill that allowed delta-8, delta-9 and THCA products to flourish has prompted some members of Congress to seek a potential ban. 

To Scott, who runs Crone Apothecary and the hemp trade group, the discussions in Washington and Madison feel less like a good-faith effort to regulate his industry than an effort by companies with a stake in legalized marijuana to cut off a potential competitor. 

Wisconsin, Scott said, is perfectly positioned to grow a vibrant hemp industry and shouldn’t crack down on bad actors at the expense of people who have come to expect and rely on the products. 

The state’s reticence to take action on the issue, he said, was in sharp contrast to its motto: “Forward.” 

“There is more money being spent to try and prevent what we’re doing as hemp farmers in our country right now than allowing us just to produce and do what we do,” he said. “And it’s crazy to me. … We could literally just change a few things and keep the industry rolling and very profitable, as well as add the social equity piece to this and allow everybody that’s ever been charged for cannabis a pardon so they can find a job and grow the economy in the state of Wisconsin.”