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Legislation Document
SPONSOR:
Rep. Chukwuocha & Sen. Brown & Rep. Osienski & Rep. Heffernan
Rep. Berry
HOUSE OF REPRESENTATIVES
153rd GENERAL ASSEMBLY
HOUSE BILL NO. 395
AN ACT TO AMEND TITLES 3, 4, AND 16 OF THE DELAWARE CODE RELATING TO HEMP, MARIJUANA, AND MARIJUANA PRODUCTS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend § 2801, Title 3 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 2801. Definitions.
For purposes of this chapter:
(1) “Department” means the Department of Agriculture.
(2) “Industrial hemp” means the plant
Cannabis sativa L.
and any part of such plant, whether growing or not, with a
delta-9 tetrahydrocannabinol concentration
total THC
of not more than 0.3 percent on a dry weight basis.
(3) “Total THC” means as defined in § 1302 of Title 4.
Section 2. Amend § 1302, Title 4 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and redesignating accordingly:
§ 1302. Definitions.
As used in this chapter:
(2) “Cannabinoids” means naturally occurring chemical compounds found in all parts of the plant
Cannabis sativa L.
, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin, including cannabidiol (CBD), cannabigerol (CBG), cannabinol (CBN), tetrahydrocannabinol (THC), and their respective acids.
(3) “CBD” means cannabidiol, a non-intoxicating cannabinoid abundant in
Cannabis sativa L
.
(8) “Container” means the innermost wrapping, packaging, or vessel in direct contact with a final product in which the product is enclosed for retail sale to consumers, such as a jar, bag, box, packet, can, carton, or cartridge.
a. When multiple items are enclosed within outer packaging that is offered for sale under a single SKU, UPC, or price (including multipacks, variety packs, “10‑packs,” or similar configurations), the outer packaging is deemed the container. In such cases, the 0.4 milligram total THC limit applies to the combined total THC of all enclosed items together, not to each enclosed item separately.
b. The term container excludes bulk shipping containers or outer wrappings that are not essential for the final retail delivery or sale to an end consumer for personal or household use.
(10) “Counterfeit THC ingredient” means any ingredient or component of a product intended or marketed to be ingested, inhaled, absorbed, or otherwise introduced into the body of a human or animal that contains cannabinoids that are not naturally produced by the
Cannabis sativa L
. plant; or that can be naturally produced by the
Cannabis sativa L.
plant, and are synthetized or manufactured artificially (i.e., outside of the plant).
(19)
(23)
“Marijuana products” means
products that are comprised of marijuana, including concentrated marijuana, and other ingredients and are intended for use or consumption, such as edible products, ointments, and tinctures.
any product intended or marketed to be ingested, inhaled, absorbed, or otherwise introduced into the body of a human or animal that contains a total THC that exceeds 0.4 milligram per container. Marijuana products do not include any infused beverage authorized for sale in Delaware.
(26) “Nonintoxicating cannabinoid” means a cannabinoid that is classified as a nonintoxicating cannabinoid in this title or by rule of the Commissioner. Cannabidiol (CBD), cannabigerol (CBG), cannabinol (CBN), and cannabichromene (CBC) are nonintoxicating cannabinoids.
(36) “THC” means any tetrahydrocannabinol whether naturally occurring, synthetic, or chemically modified.
a. THC includes any of the following:
1. Delta-7 tetrahydrocannabinol.
2. Delta-8 tetrahydrocannabinol.
3. Delta-9 tetrahydrocannabinol.
4. Delta-10 tetrahydrocannabinol.
5. Any material, compound, mixture or preparation which contains the salts, isomers, and salts of isomers of a tetrahydrocannabinol, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, regardless of the source.
b. THC does not include any of the following:
1. Dronabinol substituted in sesame oil and encapsulated in a soft gelatin capsule in a product approved by the federal Food and Drug Administration or successor agency.
2. Any tetrahydrocannabinol product that has been approved by the federal Food and Drug Administration or its successor agency to have a medical use and reclassified in any schedule of controlled substances or unscheduled by the federal Drug Enforcement Administration or successor agency.
(37)
“Total THC” means the sum of the percentage by weight of tetrahydrocannabinolic acid, multiplied by 0.877, plus the percentage of weight of THC
.
Section 3. Amend Chapter 13, Title 4 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 1316. Offense of maintaining an unlicensed marijuana establishment.
(a) A person is guilty of maintaining an unlicensed marijuana establishment if, with criminal negligence, and without a valid Delaware marijuana establishment license or endorsement issued under this title, the person’s business facilitates the distribution, cultivation, sale, storage, or delivery of one or more of the following:
(1) Marijuana as defined in § 4701 of Title 16.
(2) Marijuana products.
(3) A product containing a counterfeit THC ingredient as defined in § 1302 of this title.
(4) A product containing a designer drug as defined in § 4701 of Title 16.
(b) Penalties.
(1) Unless paragraph (b)(2) of this subsection applies, an offense under this section is a Class A misdemeanor.
(2) An offense under this section is a Class G felony if one or more of the following apply:
a. The business is located within 1,000 feet of a school, daycare center, or public park,
b. The business operates through mail service or other means that do not require a storefront.
c. Individuals under 21 years of age are present or involved in unlawful activity.
d. The property, business, or individual has previously violated this section within the past 5 years.
(c) Forfeiture
(1) Any marijuana or marijuana products seized shall be forfeited to the State for destruction 60 days after the final resolution of the criminal matter.
(2) Upon conviction of a third offense within 5 years, the arresting agency may refer the property to the Department of Justice for the initiation of nuisance abatement proceedings under § 7106 of Title 10.
(d) The Superior Court shall have exclusive jurisdiction over violations of this section.
§ 1317. Sale of marijuana or marijuana products to minors; penalties.
(a) A person is guilty of selling or providing marijuana or marijuana products to a minor if they sell, or otherwise furnish marijuana or marijuana products, to a person under 21 years of age, who is not an individual registered as a qualifying patient or a registered designated caregiver under Chapter 49A of Title 16.
(b) In any prosecution for an offense under this section, it is an affirmative defense that the individual, who has not reached the age of 21 years, presented to the accused identification with a photograph of the individual that sets forth information which would lead a reasonable person to believe the individual was 21 years of age or older.
(c) Sale of marijuana or marijuana products to a minor is a Class B misdemeanor.
(d) The Superior Court shall have exclusive jurisdiction over violations of this section.
Section 4. Amend § 1322, Title 4 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 1322. Duties and powers of the Commissioner.
(a) The Commissioner, in accordance with the Administrative Procedures Act, Chapter 101 of Title 29, shall do all of the following:
(3) Establish rules and regulations for the effective control of the business of cultivation, manufacture, and sale of marijuana and marijuana products within the State, including
determining allowable ingredients, and
the time, place, and manner in which marijuana and marijuana products may be sold and dispensed, not inconsistent with § 1331 of this title and other provisions of this chapter or with any other law of this State.
Section 5. Amend § 4701, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:
§ 4701. Definitions.
As used in this chapter:
(28) a. “Marijuana” means all parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin.
b. “Marijuana” does not include any of the following:
1. The mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination.
2. Products approved by the US Food and Drug Administration.
3. Industrial hemp as defined in § 2801 of
Title 3.
Title 3, unless utilized as a component or ingredient in a marijuana product as defined in § 1302 of Title 4.
4. Viable seeds from
Cannabis sativa L.
plants that do not exceed a total THC of 0.3 percent in the plant on a dry weight basis.
5. Federally compliant hemp products, as defined under 7 U.S.C. § 1639o, being transported in a continuous manner through Delaware.
SYNOPSIS
The General Assembly recognizes that Delaware’s industrial hemp farmers and processors play an important role in the State’s agricultural economy and that non-intoxicating industrial hemp products are lawful and should continue to be cultivated, produced, and sold in accordance with state and federal law. Nothing in this Act is intended to criminalize lawful industrial hemp or disrupt the legitimate industrial hemp industry.
The General Assembly finds that an unregulated market for intoxicating THC consumable products has emerged in Delaware, notwithstanding prior legislation making clear that intoxicating products derived from the cannabis plant are marijuana and must be sold only in licensed, regulated establishments. Intoxicating consumable products containing high levels of THC are now widely available in retail outlets, many of which operate in and target our most vulnerable communities. These products are frequently sold without age restrictions, product testing, potency limits, or meaningful labeling, and are often marketed in ways that make them especially appealing and accessible to minors.
This Act reaffirms Delaware’s commitment to a responsible adult-use marijuana industry by ensuring that all cannabis-related products sold in this State meet the highest standards of health and safety. To that end, the Act strengthens the requirement that consumable products containing a specified level of THC, regardless of their source, be sold only through licensed establishments and be subject to appropriate regulatory oversight. By ensuring these products are integrated into Delaware’s existing, comprehensive regulatory framework for adult-use marijuana—which includes stringent testing, labeling, packaging, and age-restriction requirements—this Act safeguards public health and prevents unregulated intoxicating THC consumable products from undermining the safety protections established for Delawareans, particularly children and adolescents.