Why Should Delaware Care?
The unregulated hemp industry has rapidly expanded nationwide in recent years, enabling the sale of potentially harmful cannabis-derived products without restrictions. This growing concern is now impacting Delawareans, and with the state’s marijuana industry set to launch this spring, state agencies are taking steps to address the issue.
Delaware officials want to regulate certain kinds of intoxicating hemp products, following renewed concerns from authorities who say those items too often contain toxic pesticides and high levels of the psychoactive compound found in marijuana.
Last fall, Delaware regulators in charge of alcohol and tobacco enforcement created a new workgroup to create policy around the unregulated hemp market. The new group will meet for the first time later this month, according to state officials.
“So my vision for the future would be to have only regulated retailers to sell intoxicating products,” said Paul Hyland, Delaware deputy marijuana commissioner, who was involved in kickstarting the group.
For centuries, hemp, a non-intoxicating product derived from cannabis plants, has been used commercially to develop textiles, building materials, clothing, food and pharmaceuticals. But in recent years, people have used the product to create intoxicating substances that are unregulated, as a result of a loophole in federal law.
Those products are often sold at tobacco shops and gas stations as smokable flower, gummies, concentrated oils, tincture drops, or infused beverages.
With Delaware’s legal marijuana industry set to launch sales this spring and an influx of complaints about the hemp products, the need for new regulations has increased, said Maj. Aaron Bonniwell of the Division of Alcohol and Tobacco Enforcement.
The new workgroup will be spearheaded by Bonniwell and he said it will focus on creating a regulatory framework that could include age restrictions, product testing and licensing.
Bonniwell said the issue gained steam in Delaware last year after his office began receiving complaints from local police and from parents about children consuming the products. His office also has received reports from state law enforcement who, during investigations, found those products in retail stores.
“We have a lot of active cases going on right now, some that we’re working with the Attorney General’s office with to get more guidance because this is basically a legal loophole that is out there,” he said.
The task force will also include representatives from the Department of Justice, the Office of the Marijuana Commissioner, the Department of Agriculture and the Division of Forensic Science.
What is hemp?
Hemp is a cannabis plant that contains 0.3% or less of tetrahydrocannabinol (THC), the compound that’s responsible for the “high” people feel when they use marijuana.
Cannabis is the source of both marijuana and hemp, but marijuana contains higher levels of THC (more than 0.3%), creating its intoxicating and psychoactive effects.
Hemp is non-intoxicating and is used commercially, but it is also used to extract cannabidiol, also known as CBD, another active compound with low THC levels.
Some say CBD has therapeutic properties that can help with anxiety, sleeping disorders and pain. In 2018, the Food and Drug Administration approved the use of CBD to treat epilepsy.
But CBD has also been used to make other intoxicating substances like delta-8, delta-9 and delta-10 THC. Beyond CBD, certain chemicals are used in the production process, sometimes even unsafe household chemicals, according to the Food and Drug Administration.
Hemp-derived CBD and delta-THC products have become increasingly popular and are sold in vape stores, tobacco shops, alcohol retailers, gas stations and convenience stores.
Bonniwell said in Delaware these unregulated products can be commonly found in those shops, and some of the items contain THC levels that exceed the legal 0.3% threshold.
Some products also have misleading labels that make them look like children’s candies or snacks, Hyland added.
The Farm Bill loophole
The Agriculture Improvement Act of 2018 or the “Farm Bill” legalized hemp as long as the THC in it remained under 0.3%. The bill made it legal for commercial and retail sales of hemp-derived substances, but it did not contain any regulations to restrict their sale, possession or transfer.
Now processors are using legal hemp to derive products that match or exceed the potency of its regulated marijuana equivalent. Because it exists in the loophole, the products are widely available through the mail as well.
California’s attorney general last year said the market for hemp substances, which he called “excessively potent products,” had ballooned. But because of ambiguity in the Farm Bill law, those sales amount to what he called a “gray market.”
In 2023, the value of hemp production totaled $291 million, according to the U.S. Department of Agriculture.
The farm bill also gave states and Indian tribes the authority to regulate hemp production, but the law explicitly prevents them from prohibiting the interstate transportation or shipment of hemp products.
Some states have attempted to prohibit the retail sale or production of hemp or to outright ban it, but many have been met with lawsuits accusing them of breaking federal law or violating constitutional rights. Such cases have been filed in at least nine states, including New York, Pennsylvania, Maryland and Florida.
“States that have just outright banned these products have gone up against the legal challenges in court, and most of them have lost or been enjoined where they have to remove the ban temporarily. So we don’t want to go there right now,” Hyland said.
Delaware marijuana regulators say the state has found products selling in stores that contain 10 times the THC potency allowed, and contain harmful pesticides.
Hyland also expressed concern as he noted that many of these unregulated hemp products are being imported from overseas with false labels that indicate they were grown in places like California.
Delaware alcohol and tobacco regulators have been working with state police and the Attorney General’s office to investigate locations where they’ve received complaints.
At least eight cease-and-desist letters have gone out to stores selling illegal products, according to Bonniwell.
Potential solutions
Although the new work group is in its beginning stages, some say there is an obvious way to create proper regulation.
James Brobyn, president and founding member of the Delaware Cannabis Industry Association, which represents the interests of the state’s legal marijuana market, said the state should include hemp-consumable products into the incoming marijuana industry’s regulatory structure. With recent municipal bans on the sale of marijuana, he said testing labs and others in the industry might not have enough business to be viable.
“We got all these new testing labs that we just issued licenses to, and they don’t have enough business, so none of them are going to be able to open. This would give them business,” he said.
Some residents have expressed concerns about the marijuana industry, particularly around issues like odor and public smoking. However, former marijuana commissioner Rob Coupe repeatedly noted that those concerns stem from a currently unregulated market.
Brobyn said that since hemp is already in the state, the easiest solution is to put hemp products through the marijuana industry and have infused beverages regulated through the alcohol channel so the marijuana commissioner and alcohol and tobacco regulators can have the authority to stop the sale of those harmful products.
Bonniwell said he agrees that the state should regulate hemp this way but that there are aspects of the state law that need to be changed so that the right framework can be in place.
“I think some things just need to be cleaned up from what’s been passed to make that happen,” Bonniwell said.
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