RACINE COUNTY — The Racine County district attorney is reminding retailers and customers that products containing CBD oil can only be sold under “very limited circumstances,” under the supervision of a physician.
In a news release, Racine County DA Patricia Hanson said her office has received inquiries about the possession and sale of these products in Wisconsin, and she noted retailers at liquor stores and convenience stores have started selling CBD “Gummie bears” and CBD oil. Hanson said retailers have been advised that these products are legal to sell and possess in Wisconsin, but that is not true.
Hanson said she’s advised law enforcement to make contact with store owners and management when these products are spotted in stores, to determine whether the products are being stolen lawfully. If not, law enforcement has been advised to remove the products from store shelves and ask for consent to search the store for more unlawful products.
Hanson noted in the release that some merchants who have cooperated with investigators have revealed products that contain THC, the ingredient in marijuana, despite labeling to the contrary. She noted that if the products do not contain THC, there are still requirements that must be met by the customer and retailer.
She said law enforcement officials especially want parents to be aware of these products and cautious with children who may mistake them for candy.
Anyone with information regarding sources of these products is asked to contact law enforcement. Hanson noted in the release that “CBD oil and other CBD products with or without THC are illegal to possess or distribute in Wisconsin except for patients with a doctor’s certification in very limited circumstances.”
CBD frequently takes the form of CBD oil, capsules, sprays, lotions, balms, “edibles,” or “vapes” and has been sold in stores nationwide and online. In Wisconsin, some stores have been selling versions of CBD for more than three years. These vendors claim that the version of CBD they sell is legal because it contains less than 0.3 percent THC, making it by their interpretation, legal. It is not, Hanson said.
Background information on the legality of CBD in Wisconsin
In April 2017, Governor Scott Walker signed a bill to legalize the use of CBD with a prescription in very limited cases. However, since that time, there has been much confusion among consumers and store owners regarding the legality of CBD in the state of Wisconsin.
Wisconsin law flatly prohibits the distribution and possession of any CBD product containing THC. There are no exceptions to this prohibition. If the CBD product does not contain THC, then Wisconsin law similarly prohibits distribution and possession, but there are two very limited exceptions to this rule.
A physician or pharmacy may distribute CBD (without THC) if they are specifically operating under (a) an investigational drug permit issued by the federal FDA and (b) approval by the Wisconsin Controlled Substances Board. See Wis. Stat. s. 961.34(2). An individual may possess CBD (without THC) if they also possess a certification issued by a physician. This certification must include as follows: (a) a date of issue no more than one year before the date of possession, (b) the name, address, and telephone number of the physician, (c) the name, address, and phone number of the patient, and (d) a certification that the patient possesses the CBD to treat a medical condition. See Wis. Stat. s. 961.32.
Individuals or retailers distributing or possessing CBD (without THC) without authorization are subject to the following penalties:
Distribution or Possessing CBD without THC. If the CBD does not contain THC, and the person or business does not have permission as described above, then distribution and possession would violate Wis. Stat. 961.38(1n) and may be subject to a forfeiture punishable by no more than $200 under Wis. Stat. s. 939.61(1).
Individuals or retailers distributing or possessing CBD containing THC are subject to the following penalties:
Possession of CBD Containing THC. If the CBD contains a reportable amount of THC, then prosecutors could charge the possession under Wis. Stat. § 961.41(3g)(e). Penalties range from an unclassified misdemeanor ($1,000 fine and/or up to six months in jail) to a Class I Felony ($10,000 fine and/or up to three years six months in prison), depending on whether it is a first conviction for a drug crime.
Distribution of CBD Containing THC. If the CBD contains a reportable amount of THC, then prosecutors could charge the delivery or possession with intent to deliver THC under Wis. Stat. § 961.41(1)(h) or (1m)(h). Depending on the quantities involved, penalties range from a Class I Felony ($10,000 fine and/or up to three years, six months in prison) to a Class E Felony ($50,000 fine and/or up to 15 years in prison).