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Legislation Document
SPONSOR:
Sen. Hoffner & Rep. Lynn
DELAWARE STATE SENATE
153rd GENERAL ASSEMBLY
SENATE BILL NO. 298
AN ACT TO AMEND TITLES 3 AND 16 OF THE DELAWARE CODE RELATING TO HEMP.
WHEREAS, hemp and hemp-derived cannabinoid products (HDCPs) that satisfy the delta-9 tetrahydrocannabinol concentration permitted from hemp under the law are distinct from marijuana and controlled substances; and
WHEREAS, inconsistent testing standards create uncertainty for lawful businesses, consumers, and law enforcement; and
WHEREAS, it is the intent of this Act to establish a clear method for determining whether a product is hemp or marijuana for purposes of state criminal law, seizure, forfeiture, and enforcement; and
WHEREAS, it is in the public interest to clarify the method for determining whether hemp or an HDCP is marijuana under Delaware law before criminal penalties are imposed; and
WHEREAS, it is the intent of the legislature for these businesses and consumers to be protected, retroactively and prospectively, from the inconsistency in Delaware law with regards to hemp or HDCPs and respective testing methods.
NOW, THEREFORE:
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 and by redesignating accordingly:
§ 2801. Definitions.
For purposes of this chapter:
(1)
“Delta-9 tetrahydrocannabinol concentration” means the concentration of delta-9 tetrahydrocannabinol present in hemp or an HDCP in its existing chemical form at the time of testing.
(1)
(2)
“Department” means the Department of Agriculture.
(3) “Hemp” means the plant
Cannabis sativa L.
and any part of such plant, including the seeds 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% on a dry-weight basis. Hemp and hemp-derived cannabinoids, including cannabidiol, are an agricultural commodity and not a controlled substance due to the presence of hemp or hemp-derived cannabinoids.
(4) “Hemp-derived cannabinoid product” or “HDCP” means a finished product intended for human or animal consumption that contains cannabinoids extracted or derived from Hemp.
(2)
(5)
“Industrial hemp” means the plant
Cannabis sativa L.
and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
Section 2. Amend Chapter 28, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by adding a new section as follows:
§ 2804. Method for determining status of hemp and HDCPs.
(a) Notwithstanding any other provision of law, for purposes of criminal, civil, administrative, seizure, forfeiture, or retail-sale enforcement in this State, the determination of whether hemp or an HDCP is marijuana must be based on the delta-9 tetrahydrocannabinol concentration determined under this section.
(b) The delta-9 tetrahydrocannabinol concentration of hemp or an HDCP must be determined by liquid chromatography or, in the event that liquid chromatography is impractical, another scientifically validated testing method that does not alter the chemical composition of the sample to increase the delta-9 tetrahydrocannabinol concentration.
(c) A testing method that alters the chemical composition of the sample during testing or increases the measured concentration of delta-9 tetrahydrocannabinol through chemical transformation of the sample may not be used as the basis to classify hemp or an HDCP as marijuana under Delaware law.
(d) Hemp or an HDCP with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis, as determined under this section, is not marijuana or a controlled substance under Delaware law.
(e) Nothing in this section limits the authority of the State to regulate hemp or HDCPs under a separate regulatory framework or to enforce laws against products that do not satisfy this section.
Section 3. Amend § 4701, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by redesignating accordingly:
§ 4701. Definitions.
As used in this chapter:
( ) “Hemp-derived cannabinoid product” or “HDCP” means as defined in § 2801A of Title 3.
Section 4. Amend Chapter 47, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows and by adding a new section as follows:
§ 4769A. Hemp and HDCPs; criminal non-offense; testing requirements.
(a) Notwithstanding any other provision of this chapter, the possession, transportation, storage, distribution, display, offer for sale, or sale of hemp or an HDCP that satisfies § 2802A of Title 3 does not constitute a criminal offense under this chapter and may not serve as the sole basis for arrest, search, seizure, forfeiture, or criminal prosecution before or after the effective date.
(b) A law-enforcement officer or regulatory authority may not rely on testing results to classify hemp or an HDCP as marijuana unless the testing was conducted in accordance with § 2802A of Title 3.
(c) If the State relies on laboratory testing to classify hemp or an HDCP as marijuana, the State must disclose the laboratory report, testing method, and written basis for the classification to the person subject to enforcement.
(d) Nothing in this section protects a person who knowingly falsifies, alters, or misrepresents a certificate of analysis or laboratory report.
Section 5. Rules of Construction.
(a) This Act must be liberally construed to prevent hemp and HDCPs that satisfy § 2802A of Title 3 from being treated as marijuana or controlled substances under Delaware law.
(b) Nothing in this Act creates a license, permit, registration, packaging requirement, labeling requirement, or regulatory program for HDCPs.
Section 6. Severability.
This Act is severable. If a provision of this Act or the application of this Act to a person or circumstance is held invalid, the invalidity does not affect the provisions or applications of this Act that can be given effect without the invalid provision or application.
SYNOPSIS
This Act adds clarity to distinguishing between legal hemp and hemp-derived cannabinoid products (HDCPs) and marijuana and controlled substances and provides clearer guidelines on acceptable tests for determining the difference to eliminate uncertainty for businesses, consumers, and law enforcement.
Author: Senator Hoffner