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FL Bans Delta 8 THC with SB 1698

Is Florida banning Delta 8? Senate Bill 1698 explained (simplified)

In 2024, the Florida Senate introduced a new bill titled SB 1698, which has caused quite a stir in the state and beyond. The bill proposes several changes to Florida’s State Hemp Program by limiting the amount of THC per serving and package, adding packaging and advertising restrictions to protect children, regulating events where hemp products are sold, and potentially banning cannabinoids like Delta 8, HHC, THCv, and THCp, with the goal of limiting access to these legal psychoactive hemp-derived cannabinoids.

These changes have also raised concerns about the potential impact on consumers as well as hemp and CBD businesses in Florida.  As such, it’s important to understand the implications of SB 1698 and how it may affect both consumers and businesses in Florida alike.

Introduction to FL SB 1698

Florida Senate Bill 1698 (SB 1698) is a significant piece of legislation and may in fact cripple or put out of business many CBD companies if it’s enacted.  It was unanimously approved by the Senate on Thursday and now sits on Governor Ron DeSantis’ desk for approval.

It aims to impose restrictions on the levels of THC found in hemp-extract products, capping it at 5 milligrams per serving or 50 milligrams per package. The legislation also focuses on regulating the packaging of edible hemp items and prohibits the sale of intoxicating cannabinoids delta-8 THC derived from hemp. Senate Bill 1698 also includes a provision to outlaw ingestible or inhalable products containing delta 8, delta-10 THC, HHC, THCA, THCP, and THCV, all of which are highly psychoactive cannabinoids.

Sponsored by Colleen Burton, a Republican from Lakeland and Chair of the Senate Health Policy, the bill has been designed to address emerging health and safety concerns associated with the increasing use of THC-containing products. The Senate’s decisive vote of 39-0 in favor of SB 1698 preceded a more contentious vote in the House, where the bill passed with a margin of 64-48.

This new legislation is an extension of a previous law passed last year, which prohibited the sale of hemp-extract products intended for consumption by individuals under the age of 21 and mandated child-resistant packaging. The focus of the current bill centers on delta-9-tetrahydrocannabinol and other cannabinoids in hemp products that may induce psychoactive effects.

Changes to the State Hemp Program.

Senate Bill 1698 makes changes to the Florida State Hemp Program which can be found in Chapter 581.217.

The easiest way to understand what SB 1698 changes is to see those proposed changes on the State Hemp Program.

So, that’s what we did for you.  This is a good starting point for you to read the proposed changes using the revised State Hemp Program combined with SB 1698 as shown below.

OR

SKIP TO THE SUMMARY FOR MY TAKE ON SB 1698

LAW LEGAL GAVEL AND CANNABIS LEAF ON GREEN BACKGROUND

State Hemp Program and Senate Bill 1698 (combined)

SB 1698 (PDF)

 

How to read the SB 1698 changes.

When changes have been proposed, you’ll see 3 different versions of it within the State Hemp Program plus Notes about the changes in Green Italics.

  1. “OLD” (existing) version – GRAY BACKGROUND
  2. “REVISIONS” – PURPLE TEXT
    • Added Text: UNDERLINED
    • Removed Text: –CROSSED OUT
  3. “NEW” – HIGHLIGHTED

Below the State Hemp Program combined with SB 1698 you’ll find our comments, arguments, and questions regarding the proposed bill.

581.217 State hemp program. (VIEW ONLINE)

(1) CREATION AND PURPOSE.—The state hemp program is created within the department to regulate the cultivation of hemp in the state. This section constitutes the state plan for the regulation of the cultivation of hemp for purposes of 7 U.S.C. s. 1639p.

(2) LEGISLATIVE FINDINGS.—The Legislature finds that:

(a) Hemp is an agricultural commodity.

OLD (b) Hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants if they are in compliance with this section.

REVISIONS (b) Hemp and hemp extract as defined in this section Hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants if they are in compliance with this section.

NEW (b) Hemp and hemp extract as defined in this section are not controlled substances.

(3) DEFINITIONS.—As used in this section, the term:

OLD (a) “Attractive to children” means manufactured in the shape of humans, cartoons, or animals; manufactured in a form that bears any reasonable resemblance to an existing candy product that is familiar to the public as a widely distributed, branded food product such that a product could be mistaken for the branded product, especially by children; or containing any color additives.

REVISIONS (a) “Attractive to children” means manufactured in the shape of, or packaged in containers displaying, humans, cartoons, or animals, toys, or other features that target children; manufactured in a form or packaged in a container that bears any reasonable resemblance to an existing candy or snack product that is familiar to the public; manufactured in a form or packaged in a container that bears any reasonable resemblance to a as a widely distributed, branded food product such that the a product could be mistaken for the branded food product, especially by children; or containing any color additives.

NEW (a) “Attractive to children” means manufactured in the shape of, or packaged in containers displaying, humans, cartoons, animals, toys, or other features that target children; manufactured in a form or packaged in a container that bears any reasonable resemblance to an existing candy or snack product that is familiar to the public; manufactured in a form or packaged in a container that bears any reasonable resemblance to a branded food product such that the product could be mistaken for the branded food product, especially by children; or containing any color additives.

(b) “Certifying agency” has the same meaning as in s. 578.011(8).

(c) “Contaminants unsafe for human consumption” includes, but is not limited to, any microbe, fungus, yeast, mildew, herbicide, pesticide, fungicide, residual solvent, metal, or other contaminant found in any amount that exceeds any of the accepted limitations as determined by rules adopted by the Department of Health in accordance with s. 381.986, or other limitation pursuant to the laws of this state, whichever amount is less.

(d) “Cultivate” means planting, watering, growing, or harvesting hemp.

OLD (e) “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3 percent total delta-9-tetrahydrocannabinol on a wet-weight basis.

REVISIONS (e) “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3 percent total delta-9-tetrahydrocannabinol concentration on a wet-weight basis or that does not exceed 5 milligrams per serving and 50 milligrams per container on a wet-weight basis, whichever is less.

NEW (e) “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3 percent total delta-9-tetrahydrocannabinol concentration on a wet-weight basis or that does not exceed 5 milligrams per serving and 50 milligrams per container on a wet-weight basis, whichever is less.

OLD (f) “Hemp extract” means a substance or compound intended for ingestion, containing more than trace amounts of a cannabinoid, or for inhalation which is derived from or contains hemp and which does not contain controlled substances. The term does not include synthetic cannabidiol or seeds or seed-derived ingredients that are generally recognized as safe by the United States Food and Drug Administration.

REVISIONS (f) “Hemp extract” means hemp that is a substance or compound intended for ingestion or inhalation and that contains, containing more than trace amounts of a cannabinoid but, or for inhalation which is derived from or contains hemp and which does not contain controlled substances listed in s. 893.03; any quantity of synthetic cannabinoids; or delta-8- tetrahydrocannabinol, delta-10-tetrahydrocannabinol, hexahydrocannabinol, tetrahydrocannabinol acetate, tetrahydrocannabiphorol, or tetrahydrocannabivarin. The term does not include synthetic cannabidiol or seeds or seed-derived ingredients that are generally recognized as safe by the United States Food and Drug Administration.

NEW (f) “Hemp extract” means hemp that is intended for ingestion or inhalation and that contains more than trace amounts of a cannabinoid but, does not contain controlled substances listed in s. 893.03; any quantity of synthetic cannabinoids; or delta-8- tetrahydrocannabinol, delta-10-tetrahydrocannabinol, hexahydrocannabinol, tetrahydrocannabinol acetate, tetrahydrocannabiphorol, or tetrahydrocannabivarin. The term does not include synthetic cannabidiol or seeds or seed-derived ingredients that are generally recognized as safe by the United States Food and Drug Administration.

 

(g) “Independent testing laboratory” means a laboratory that:

1. Does not have a direct or indirect interest in the entity whose product is being tested;

2. Does not have a direct or indirect interest in a facility that cultivates, processes, distributes, dispenses, or sells hemp or hemp extract in the state or in another jurisdiction or cultivates, processes, distributes, dispenses, or sells marijuana, as defined in s. 381.986; and

3. Is accredited by a third-party accrediting body as a competent testing laboratory pursuant to ISO/IEC 17025 of the International Organization for Standardization.

ADDED NEW (h) “Total delta-9-tetrahydrocannabinol concentration” means a concentration calculated as follows: [delta-9- tetrahydrocannabinol] + (0.877 x [delta-9-tetrahydrocannabinolic acid]).

(4) FEDERAL APPROVAL.—The department shall seek approval of the state plan for the regulation of the cultivation of hemp with the United States Secretary of Agriculture in accordance with 7 U.S.C. s. 1639p within 30 days after adopting rules. If the state plan is not approved by the United States Secretary of Agriculture, the Commissioner of Agriculture, in consultation with and with final approval from the Administration Commission, shall develop a recommendation to amend the state plan and submit the recommendation to the Legislature.

(5) LICENSURE.—

(a) It is unlawful for a person to cultivate hemp in this state without a license issued by the department.

(b) A person seeking to cultivate hemp must apply to the department for a license on a form prescribed by the department and must submit a full set of fingerprints to the department along with the application.

1. The department shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for national processing.

2. Fingerprints submitted to the Department of Law Enforcement pursuant to this paragraph must be retained by the Department of Law Enforcement as provided in s. 943.05(2)(g) and (h) and must be retained as provided in s. 943.05(4) when the Department of Law Enforcement begins participation in the Federal Bureau of Investigation’s national retained fingerprint arrest notification program.

3. Any arrest record identified shall be reported to the department.

(c) The department shall adopt rules establishing procedures for the issuance and annual renewal of a hemp license.

(d) A person seeking to cultivate hemp must provide to the department the legal land description and global positioning coordinates of the area where hemp will be cultivated.

(e) The department shall deny the issuance of a hemp license to an applicant, or refuse to renew the hemp license of a licensee, if the department finds that the applicant or licensee:

1. Has falsified any information contained in an application for a hemp license or hemp license renewal; or

2. Has been convicted of a felony relating to a controlled substance under state or federal law. A hemp license may not be issued for 10 years following the date of the conviction.

(6) HEMP SEED.—A licensee may only use hemp seeds and cultivars certified by a certifying agency or a university conducting an industrial hemp pilot project pursuant to s. 1004.4473.

OLD (7) DISTRIBUTION AND RETAIL SALE OF HEMP EXTRACT.—

REVISIONS (7) MANUFACTURE, DELIVERY, HOLD, OFFER FOR SALE, DISTRIBUTION, AND RETAIL SALE OF HEMP EXTRACT.—

NEW (7) MANUFACTURE, DELIVERY, HOLD, OFFER FOR SALE, DISTRIBUTION, AND SALE OF HEMP EXTRACT.—

OLD (a) Hemp extract may only be distributed and sold in the state if the product:

REVISIONS (a) Hemp extract may only be manufactured, delivered, held, offered for sale, distributed, or and sold in this the state if the product:

NEW (a) Hemp extract may only be manufactured, delivered, held, offered for sale, distributed, or sold in this state if the product:

1. Has a certificate of analysis prepared by an independent testing laboratory that states:

a. The hemp extract is the product of a batch tested by the independent testing laboratory;

OLD b. The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent pursuant to the testing of a random sample of the batch;

REVISIONS b. The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent pursuant to the testing of a random sample of the batch. However, if the batch is sold at retail, the batch must meet the total delta-9- tetrahydrocannabinol concentration limits set forth in paragraph (3)(e) for hemp extract;

NEW b. The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent pursuant to the testing of a random sample of the batch. However, if the batch is sold at retail, the batch must meet the total delta-9- tetrahydrocannabinol concentration limits set forth in paragraph (3)(e) for hemp extract;

c. The batch does not contain contaminants unsafe for human consumption; and

d. The batch was processed in a facility that holds a current and valid permit issued by a human health or food safety regulatory entity with authority over the facility, and that facility meets the human health or food safety sanitization requirements of the regulatory entity. Such compliance must be documented by a report from the regulatory entity confirming that the facility meets such requirements.

OLD 2. Is distributed or sold in a container that includes:

REVISIONS 2. Is manufactured, delivered, held, offered for sale, distributed, or sold in a container that includes:

NEW 2. Is manufactured, delivered, held, offered for sale, distributed, or sold in a container that includes:

a. A scannable barcode or quick response code linked to the certificate of analysis of the hemp extract batch by an independent testing laboratory;

b. The batch number;

c. The Internet address of a website where batch information may be obtained;

OLD d. The expiration date; and

REVISIONS d. The expiration date; and

NEW d. The expiration date;

OLD e. The number of milligrams of each marketed cannabinoid per serving.

REVISIONS e. The number of milligrams of each marketed cannabinoid per serving; and

NEW e. The number of milligrams of each marketed cannabinoid per serving; and

ADDED NEW (f) The toll-free telephone number for the national Poison Help line, (800)222-1222.

OLD 3. Is distributed or sold in a container that:

REVISIONS 3. Is manufactured, delivered, held, offered for sale, distributed, or sold in a container that:

NEW 3. Is manufactured, delivered, held, offered for sale, distributed, or sold in a container that:

a. Is suitable to contain products for human consumption;

b. Is composed of materials designed to minimize exposure to light;

c. Mitigates exposure to high temperatures;

d. Is not attractive to children; and

e. Is compliant with the United States Poison Prevention Packaging Act of 1970, 15 U.S.C. ss. 1471 et seq., without regard to provided exemptions.

OLD (b) Hemp extract may only be sold to a business in this state if that business is properly permitted as required by this section.

REVISIONS (b) Hemp extract may only be sold to or procured by a business in this state if that business is properly permitted as required by this section.  A business or food establishment may not possess hemp extract products that are attractive to children.

NEW (b) Hemp extract may only be sold to or procured by a business in this state if that business is properly permitted as required by this section.  A business or food establishment may not possess hemp extract products that are attractive to children.

OLD (c) Hemp extract distributed or sold in this state is subject to the applicable requirements of chapter 500, chapter 502, or chapter 580.

REVISIONS (c) Hemp extract manufactured, delivered, held, offered for sale, distributed, or sold in this state is subject to the applicable requirements of chapter 500, chapter 502, or chapter 580.

NEW (c) Hemp extract manufactured, delivered, held, offered for sale, distributed, or sold in this state is subject to the applicable requirements of chapter 500, chapter 502, or chapter 580.

NOTES – Chapter 500 – https://www.flsenate.gov/Laws/Statutes/2022/Chapter500

NOTES – Chapter 502 – https://www.flsenate.gov/Laws/Statutes/2022/Chapter502

NOTES – Chapter 580 – https://www.flsenate.gov/Laws/Statutes/2022/Chapter580

(d) Products that are intended for human ingestion or inhalation and that contain hemp extract, including, but not limited to, snuff, chewing gum, and other smokeless products, may not be sold in this state to a person who is under 21 years of age. A person who violates this paragraph commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A person who commits a second or subsequent violation of this paragraph within 1 year after the initial violation commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

OLD (e) Hemp extract distributed or sold in violation of this subsection is subject to s. 500.172 and penalties as provided in s. 500.121. Hemp extract products found to be mislabeled or attractive to children are subject to an immediate stop-sale order.

REVISIONS (e) Hemp extract possessed, manufactured, delivered, held, offered for sale, distributed, or sold in violation of this subsection by an entity regulated under chapter 500 is subject to s. 500.172 and penalties as provided in s. 500.121. Hemp extract products found to be mislabeled or attractive to children are subject to an immediate stop-sale order.  The department may not grant permission to remove or use, except for disposal, hemp extract products subject to a stop-sale order which are attractive to children until the department determines that the hemp extract products comply with state law.

NEW (e) Hemp extract possessed, manufactured, delivered, held, offered for sale, distributed, or sold in violation of this subsection by an entity regulated under chapter 500 is subject to s. 500.172 and penalties as provided in s. 500.121. Hemp extract products found to be mislabeled or attractive to children are subject to an immediate stop-sale order.  The department may not grant permission to remove or use, except for disposal, hemp extract products subject to a stop-sale order which are attractive to children until the department determines that the hemp extract products comply with state law.

NOTES 500.172 – https://www.flsenate.gov/laws/statutes/2022/500.172

NOTES 500.121 – https://www.flsenate.gov/Laws/Statutes/2022/0500.121

ADDED NEW (f)1. An event organizer may not promote, advertise, or facilitate an event where:

ADDED NEW a. Hemp extract products that do not comply with general law, including hemp extract products that are not from an approved source as provided in sub-subparagraph (a)1.d., are sold or marketed; or

ADDED NEW b. Hemp extract products are sold or marketed by businesses that are not properly permitted as required by this section and chapter 500.

ADDED NEW 2. Before an event where hemp extract products are sold or marketed, an event organizer must provide to the department a list of the businesses selling or marketing hemp extract products at the event and verify that each business is only selling hemp products from an approved source. The event organizer must ensure that each participating business is properly permitted as required by this section and chapter 500.

ADDED NEW 3. A person who violates this paragraph is subject to an administrative fine in the Class III category under s. 570.971 for each violation.

ADDED NEW Section 2. For the 2024-2025 fiscal year, the sum of $2 million in nonrecurring funds is appropriated from the General Revenue Fund to the Department of Law Enforcement for the purchase of testing equipment necessary to implement this act.

ADDED NEW Section 3. This act shall take effect October 1, 2024.

(8) LAND REGISTRY.—The department shall maintain a registry of land on which hemp is cultivated or has been cultivated within the past 3 calendar years, including the global positioning coordinates and legal land description for each location.

(9) DEPARTMENT REPORTING.—The department shall submit monthly to the United States Secretary of Agriculture a report of the locations in the state where hemp is cultivated or has been cultivated within the past 3 calendar years. The report must include the contact information for each licensee.

(10) VIOLATIONS.—

(a) A licensee must complete a corrective action plan if the department determines that the licensee has negligently violated this section or department rules, including negligently:

1. Failing to provide the legal land description and global positioning coordinates pursuant to subsection (5);

2. Failing to obtain a proper license or other required authorization from the department; or

3. Producing Cannabis sativa L. that has a total delta-9-tetrahydrocannabinol concentration that exceeds 0.3 percent on a dry-weight basis.

(b) The corrective action plan must include:

1. A reasonable date by which the licensee must correct the negligent violation; and

2. A requirement that the licensee periodically report to the department on compliance with this section and department rules for a period of at least 2 calendar years after the date of the violation.

(c) A licensee who negligently violates the corrective action plan under this subsection three times within 5 years is ineligible to cultivate hemp for 5 years following the date of the third violation.

(d) If the department determines that a licensee has violated this section or department rules with a culpable mental state greater than negligence, the department shall immediately report the licensee to the Attorney General and the United States Attorney General.

(11) ENFORCEMENT.—

(a) The department shall enforce this section.

(b) Every state attorney, sheriff, police officer, and other appropriate county or municipal officer shall enforce, or assist any agent of the department in enforcing, this section and rules adopted by the department.

(c) The department, or its agent, is authorized to enter any public or private premises during regular business hours in the performance of its duties relating to hemp cultivation.

(d) The department shall conduct random inspections, at least annually, of each licensee to ensure that only certified hemp seeds are being used and that hemp is being cultivated in compliance with this section.

(12) RULES.—The department shall adopt rules to administer the state hemp program. The rules must provide for:

(a) A procedure that uses post-decarboxylation or other similarly reliable methods for testing the delta-9-tetrahydrocannabinol concentration of cultivated hemp.

(b) A procedure for the effective disposal of plants, whether growing or not, that are cultivated in violation of this section or department rules, and products derived from those plants.

(c) Packaging and labeling requirements that ensure that hemp extract intended for human ingestion or inhalation is not attractive to children.

(d) Advertising regulations that ensure that hemp extract intended for human ingestion or inhalation is not marketed or advertised in a manner that specifically targets or is attractive to children.

(13) APPLICABILITY.—Notwithstanding any other law:

(a) This section does not authorize a licensee to violate any federal or state law or regulation.

(b) This section does not apply to a pilot project developed in accordance with 7 U.S.C. 5940 and s. 1004.4473.

(c) A licensee who negligently violates this section or department rules is not subject to any criminal or civil enforcement action by the state or a local government other than the enforcement of violations of this section as authorized under subsection (10).

History.—s. 1, ch. 2019-132; s. 5, ch. 2020-135; s. 26, ch. 2023-154; s. 2, ch. 2023-299.

JUDGES WOODEN GAVEL WITH A LAW BOOK IN THE BACKGROUND

Summary of SB 1698 Proposed Changes
(in Layman's Terms)

My interpretation of these new definition and statute changes. Below are the revised lines in SB 1698 which would affect the legality of Delta 8, Delta-10 THC, HHC, THCA, THCP, and THCV in Florida should Governor Ron DeSantis sign the bill.

 

“HEMP EXTRACT”

First, we need to start at the changes to “Hemp Extract”.  Then we’ll work backwards to make sense of these changes.

 

“Hemp Extract” now “means hemp that is intended for ingestion or inhalation and that contains more than trace amounts of a cannabinoid but does not contain:

  • controlled substances listed in s. 893.03;
  • any quantity of synthetic cannabinoids; or
  • Delta-8- tetrahydrocannabinol, Delta-10-tetrahydrocannabinol, Hexahydrocannabinol, Tetrahydrocannabinol acetate, Tetrahydrocannabiphorol, or Tetrahydrocannabivarin. (Delta 8, Delta 10, HHC, THC-O-acetate, THCp, or THCv)

 

This means two very important things for CBD companies. 

  1. The new rules for hemp extract would now include vapes (Delta 8 Disposable Vapes, HHC Vape Cartridges, etc.) along with gummies, tinctures, and other edible or ingestible products.
  2. All Delta 8, Delta 10, HHC, THC-O-acetate, THCp, or THCv products are removed from the definition of “Hemp Extract”. This means they will no longer be able to be manufactured or sold in the state of Florida if this bill passes. 

DON’T FREAK OUT.  THERE ARE SOME WORKAROUNDS.

 

“HEMP”

As it stands without the SB 1698 changes:

  • All cannabinoids are included in the definition of Hemp, whose limitations only apply to less than 0.3% Delta 9 THC.
  • Hemp Extract includes Hemp (and the cannabinoids in hemp) intended for ingestion only.
  • Hemp-derived cannabinoids are not controlled substances if they are in compliance with this section (meaning they contain less than 0.3% Delta 9 THC)

 

With the changes proposed in Senate Bill 1698:

The definition of “Hemp” stays the same with one small addition at the end for Hemp Extract (bold and underlined below)

“Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exception of hemp extract, which may not exceed 0.3 percent total delta-9-tetrahydrocannabinol concentration on a wet-weight basis or that does not exceed 5 milligrams per serving and 50 milligrams per container on a wet-weight basis, whichever is less.

 

We must understand a few things about the old definition of “Hemp” and the changes:

  1. Hemp includes “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof”. This means that hemp includes all of the cannabinoids removed from the definition of “Hemp Extract” (Delta 8, Delta 10, HHC, THC-O-acetate, THCp, or THCv).
  2. Hemp is only limited to hemp and hemp products which may not exceed 0.3 percent total delta-9-tetrahydrocannabinol concentration on a dry-weight basis” and for hemp extract products on a wet-weight basis. This brings me to the next point with the addition of number 3 below.
  3. In the definition of Hemp referencing Hemp Extract adds an addition “OR” stipulation, “or that does not exceed 5 milligrams per serving and 50 milligrams per container on a wet-weight basis, whichever is less.

 

Key Takeaways about these changes.

  1. Hemp is only limited to less than 0.3% Delta 9 THC, not Delta 8.
  2. The cannabinoids removed from the definition of “Hemp Extract” (Delta 8, Delta 10, HHC, THC-O-acetate, THCp, or THCv) ARE STILL INCLUDED IN THE DEFINITION OF HEMP.
  3. The additional limitations placed on Hemp Extract (hemp products for ingestion or inhalation) of a maximum of 5mg per serving and 50mg per container ONLY APPLY TO DELTA 9 THC, NOT DELTA 8, HHC, OR THE OTHER CANNABINOIDS REMOVED FROM “HEMP EXTRACT”

 

Laws Category Businessman in Handcuffs

 

LEGALITY

Finally, let’s examine the first change made from SB 1698 which is a statement about hemp’s legality. Here are both the old and revised statements:

OLD (b) Hemp-derived cannabinoids, including, but not limited to, cannabidiol, are not controlled substances or adulterants if they are in compliance with this section.

NEW (b) Hemp and hemp extract as defined in this section are not controlled substances.

Because “cannabinoids” are still included in the definition of Hemp, even though they’ve been removed from the definition of “Hemp Extract”, and because the 2018 Farm Bill also removes hemp and hemp-derived cannabinoids from the Schedule I drugs where they are listed, then the good news regarding the legality of Delta 8, Delta 10, HHC, THC-O-acetate, THCp, and THCv is they seem to still be protected under these statements.  This means that although they may be banned from manufacturing or selling them in Florida, for consumers they should be legal to possess, theoretically.

 

Additional Changes with SB 1698

 

Attractive to Children Rules Now Include Packaging, not just the look of the Candy/Gummies. 

NEW (a) “Attractive to children” means manufactured in the shape of, or packaged in containers displaying, humans, cartoons, animals, toys, or other features that target children; manufactured in a form or packaged in a container that bears any reasonable resemblance to an existing candy or snack product that is familiar to the public; manufactured in a form or packaged in a container that bears any reasonable resemblance to a branded food product such that the product could be mistaken for the branded food product, especially by children; or containing any color additives.

NEW (b) Hemp extract may only be sold to or procured by a business in this state if that business is properly permitted as required by this section.  A business or food establishment may not possess hemp extract products that are attractive to children.

 

(ADDED NEW) Total THC to include THCa (x 0.877) which may affect THCa Flower

ADDED NEW (h) “Total delta-9-tetrahydrocannabinol concentration” means a concentration calculated as follows: [delta-9- tetrahydrocannabinol] + (0.877 x [delta-9-tetrahydrocannabinolic acid]).

 
How does this affect THCa products?

Because you’ve added THCa into the definition of Total THC Concentration, the less than 0.3% or maximum of 5mg per serving and 50mg per container will now apply to THCa products using the total THC formula of Delta 9 THC + THCa (x 0.877) = Total Delta 9 THC Concentration.

 

(ADDED NEW) Additional Labelling Requirements.

If SB1698 goes into effect, you will now have to add the phone number for the National Poison Help Line on all of your labels and packaging.

The toll-free telephone number for the national Poison Help line, (800)222-1222.”

For those CBD companies like us with hundreds, if not thousands, of product labels and preprinted packaging, they all either need to be redone, or an additional sticker with the National Poison Help Line needs to be added to the outside of the packaging.

 

(ADDED NEW) Selling Hemp Products at Events

  1. An event organizer may not promote, advertise, or facilitate an event where:
  2. Hemp extract products that do not comply with general law, including hemp extract products that are not from an approved source as provided in sub-subparagraph (a)1.d., are sold or marketed; or
  3. Hemp extract products are sold or marketed by businesses that are not properly permitted as required by this section and chapter 500.
  4. Before an event where hemp extract products are sold or marketed, an event organizer must provide to the department a list of the businesses selling or marketing hemp extract products at the event and verify that each business is only selling hemp products from an approved source. The event organizer must ensure that each participating business is properly permitted as required by this section and chapter 500.
  5. A person who violates this paragraph is subject to an administrative fine in the Class III category under s. 570.971 for each violation.
 

Section 2. For the 2024-2025 fiscal year, the sum of $2 million in nonrecurring funds is appropriated from the General Revenue Fund to the Department of Law Enforcement for the purchase of testing equipment necessary to implement this act.

Section 3. This act shall take effect October 1, 2024.

 

Key Takeaways:
  • This will definitely apply to venders selling Delta 9 THC products at events like concerts, farmers markets, etc.
  • However, because the above added statutes only apply to “Hemp Extract” products, these do not apply to any of the cannabinoids removed from the definition of “Hemp Extract” like Delta 8, Delta 10, HHC, THC-O-acetate, THCp, and THCv.
  • It would still violate the general principles of trying to sell these cannabinoids for ingestion or inhalation because that would then make Hemp Extract products, not just hemp products. But theoretically, the fact rules applying to the Event should have no jurisdiction over these cannabinoid products.
  • This goes into effect on October 1, 2024

Timeline if it passes

If Governor Ron DeSantis does sign SB 1698, it will go into effect on October 1, 2024. 

But, that may not be the correct date.  From what I’ve heard, several of the largest CBD companies in Florida are planning a huge lawsuit against the State of Florida.  Because, esssentially they’d be putting them, and maybe even us, out of business.  

When this happens and a new law gets tied up in litigation, in most cases this delays this date for around a year. 

So, if it passes, worst case scenario October 2024.   If they lose the lawsuit, then around October 2025.  If they win, even better.  

And there are some great arguments against the state.  See what the USDA’s General Counsel says about State vs. Federal Law.  

 

What does the USDA have to say about State vs. Federal Law?

This is a legal opinion written in 2019 by the general counsel of the USDA about State vs. Federal laws and the 2018 Agricultural Act (Farm Bill). 

If you have questions about hemp law, this is the place to start.  I found this PDF on page 100 of Google when I was researching for the Delta 8 Laws: A State by State Guide article.  It cleared everything up for me. 

Because it was a flattened PDF (basically a picture, not text on a page), most people probably have never read it as the text doesn’t show up in any Google results near the first few pages.  But with new OCR technology, I’ve converted it to a text readable file and it’s yours to read and download.  Enjoy!

State vs. Federal Law (MUST READ!)

2019-05-28 State vs Federal Law Legal Opinion on the 2018 Agricultural Act by the USDA-Executive Summary of New Hemp Authorities

The Good News. THC is still for Sale.

Even if Delta 8 gets banned in Florida, there is still some good news.  

  1. It’s going to take 6 months to 1.5 years to go into effect.
  2. The Farm Bill strictly protects interstate commerce so there’s nobody who can stop someone from another state sending you a jar of Delta 8 Gummies to your home.
  3. Delta 9 THC Gummies are still legal.  Yes, we’ll have to make them 5mg instead of 10mg and only put 10 gummies per bag.  But, THC will still be readily available.

Wrapping Up

This is a stressful time for CBD companies in Florida.  Senate Bill 1698 (SB 1698) is sitting on Ron DeSantis’ desk waiting to be signed.  So, let’s get to the big elephant in the room.  Will Florida Senate Bill 1698 ban Delta 8 THC products if signs it?  If it does, then it would most likely put most hemp companies out of business, given the fact that Delta 8 is on average approximately 60%-80% of all sales. 

Understanding state statutes is extremely complicated, especially when it comes to hemp.  Senate Bill 1698 is no different.  But it’s just one piece of the puzzle.  Like all bills filled with legal jargon, you’re only looking at the revisions.  And piecing it together with the original statutes and any other revisions can be a daunting task.  Not to mention lawyers love to make things complicated. 

So, we’re going to break it down for you piece by piece in layman’s terms with this easy-to-understand guide.  Plus, we’ve combined the revisions proposed in SB 1698 with the Florida State Hemp Program (581.217) so you can easily read the entire proposed statutes in one place. 

If this bill does pass, and it reads like everyone thinks it does, there’s some good news.  It won’t go into effect until months from now and that may even get extended once the state is sued by several Florida CBD companies which may tie this bill up in litigation for an additional year.  We’ll lay out the timeline for you below. 

Also, it should be noted, the author of this article is not an attorney, but has most likely done more research on this subject than most attorneys.  If you own a CBD company selling Delta 8 or any of the other psychoactive cannabinoids in Florida, please consult your own attorney for any legal advice, which this article is not. 

If you’d like to discuss this further or need an article written for you website.  Please contact David McGinnis via the chat support on hemplively.com.  There you can also find articles on State-by-State Delta 8 Laws and State-by-State Hemp Licensing which are located in the hemp business resources section of our blog. 

Have a great day and don’t stress, buy some Delta 8 THC gummies instead.