Will State Move to Legalize Marijuana?

As last week’s Data Wonk column reported that a strong majority of Wisconsin voters support the legalization of marijuana, as indicated by responses to the Marquette Law School Poll. This support was particularly strong when it comes to medical marijuana that is supported by a doctor’s prescription. While there are reasons to legalize it, there are also lessons to learn from the many states that have done so.

The 2023 to 2024 session of the Wisconsin Legislature saw two bills that would have legalized the use of marijuana in whole or on part. In October of 2023, almost all Democratic representatives and senators signed onto Assembly Bill 506, which would have legalized the possession of both medical and recreational marijuana. Possession of recreational marijuana would have been limited to people aged 21 or older.

To produce, process, distribute, or sell marijuana would require a person to obtain separate permits from the Department of Revenue and, in the case of marijuana producers and processors, additional permits from the Department of Agriculture, Trade and Consumer Protection. These two agencies would have been required to develop a scoring system to determine which applicants were eligible to receive permits. The scores would be based on which applicants would best protect “the environment; provide stable, family-supporting jobs to local residents; ensure worker and consumer safety; operate secure facilities; and uphold the laws of the jurisdictions in which they operate.”

The bill would have required the two agencies to create an excise tax on recreational marijuana “for the privilege of producing, processing, distributing, or selling marijuana in this state.” No tax would be levied on medical marijuana.

In February of 2024, nineteen Republican members of the Wisconsin Assembly introduced their own marijuana bill. Assembly Bill 1040 would have legalized medical marijuana under quite strict rules. It would have left recreational marijuana illegal.

As with AB 506, sales of medical marijuana would have been exempt from state taxes, although the bill establishes a $50,000 fee on marijuana processors, which seems likely to be passed on to consumers. Many of the  provisions of AB 1040 appear to be aimed at making sure that medical marijuana does not end up as recreational.

Although this bill was developed by Assembly Republicans, it was rejected by Republicans in the state Senate, who objected to the bill’s establishment of an Office of Medical Cannabis Regulation to create and manage the patient and caregiver registry as an expansion of government.

Neither bill made much progress in the Legislature. Neither received a public hearing. In April 2024, both died with the adjournment of the 2023-24 session of the Legislature.

Thus, despite public opinion in favor of legalizing both medical and recreational marijuana, the situation in Wisconsin is unlikely to change at least until a less gerrymandered legislative body emerges. Action then shifts to the federal government.

The Drug Enforcement Administration has proposed moving marijuana from Schedule I, which it shares with cocaine and heroin to Schedule III. Examples of Schedule III drugs are products containing less than 90 milligrams of codeine per dosage unit, such as Tylenol with codeine, ketamine, anabolic steroids, and testosterone. The move would make it easier to do research on the benefits and dangers of marijuana.

One concern is an apparent increase in the potency of marijuana. Evidence for this is an analysis by the National Center for Natural Products Research, which monitors the potency of cannabis products distributed in the illegal marijuana marketplace in the United States. As the next graph shows, the percentage of THC found has grown by a factor of four between 1995 and 2022.

THC is delta-9-tetrahydrocannabinol, the main psychoactive ingredient in the cannabis plant. It’s what makes one feel “high” when smoking marijuana or eating an edible. CBD is short for cannabidiol, another product of the marijuana plant. It is most commonly used to treat chronic pain, anxiety, inflammation and insomnia.

An article recently published in the Atlantic argues that the states experience with legalization has been disappointing. Entitled Marijuana Is Too Strong Now, the article blames the marketplace for the increasing potency. This includes the concentration in several states’ dispensaries. For example, Minnesota’s 15 medical dispensaries are owned by only two multistate operators.

Another Atlantic article, entitled Almost No One Is Happy With Legal Weed, picks up on the same theme:

The legalization of cannabis in the United States—the biggest change in policy for an illegal substance since Prohibition ended—has been an unqualified success for approximately no one. … a significant part of the market is still underground, medical research is scant, and the aboveground market is not exactly thriving.

Currently in the United States, marijuana is legal in 38 of the 50 states for medical use and 24 states for recreational use, following a variety of models. As it looks towards future legalization of marijuana, Wisconsin would be wise to take advantage of their experience.