CBD stores decry Delaware’s attempt to regulate hemp products with low-level THC

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The fragrant scents of essential oils and soothing sounds of soft jazz greet all who venture into Botana Organics.

The tiny store, nestled in the rear of a strip shopping center in the Talleyville area north of Wilmington, has a simple but sublime motto that emblazons its exterior: “Your Health is Your Wealth!”

Inside, shelves and display cases contain an array of hemp-based products, designed for their therapeutic effects.

There’s gummies, chocolates, candies, oils, tinctures, softgels, beverages, creams, balms and smokable leaf products.

The items are cannabinoids, which include the nonintoxicating substance known as CBD and also ones that include a low but not intoxicating dose of THC, the active ingredient in marijuana that produces the “high.”

Botana Organics, located in the Talleyville area north of Wilmington, has been in business for six years. (Cris Barrish/WHYY)

Owner Jesse Ginefra, a laid-back 32-year-old who started Botana six years ago, says his customers, who must be adults, come from all walks of life.

“It’s mothers that are stressed out from having too much on their plate,’’ Ginefra said. “It’s elderly clients who are looking for relief from chronic pain, from maybe car accidents, or chronic inflammation, sleep disorders, depression, anxiety.”

Gretchen Cirwithian is a Botana regular. The warehouse manager and former pharmacy technician says she’s gravitated over the years to cannabinoids and away from prescription drugs to deal with anxiety and aches and pains and to achieve overall well-being.

Botana Organics customer Gretchen Cirwithian says she would prefer to buy her cannabinoid products from a wellness store where she gets personalized services, as opposed to a marijuana dispensary. (Cris Barrish/WHYY)

Botana has become Cirwithian’s go-to store, with Ginefra helping her navigate the range of products.

“Jesse comes with the research and the knowledge and it’s about helping people feel better, heal,” she said.

But this spring, a legislative effort aimed at better regulating cannabinoids has threatened to devastate businesses like Botana and dozens of other CBD-oriented stores in Delaware.

While Ginefra and other store owners say their products are legal under federal law because they contain less than 0.3% of THC, some lawmakers and state officials say products that have undergone chemical processes that raise the THC level are being sold by some smoke shops, gas stations and convenience stores.

Those products have been purchased by teens and confiscated by police officers who work in schools, and led to some emergency room visits, officials say.

Such public health concerns led to the introduction last month of a bill that, among other measures, would restrict the sale of hemp products that contain any amount of THC to the 30 retail marijuana stores that will be given licenses in Delaware’s new recreational cannabis marketplace.

No retail weed stores have yet opened more than two years after marijuana was legalized in Delaware, but state officials say some could be operating by late summer.

State Rep. Deborah Heffernan is prime sponsor of the the bill that would restrict the sale of hemp products with any amount of THC to retail marijuana store. (State of Delaware)

State Rep. Deborah Heffernan, the prime sponsor of the bill, said hemp products usually get tested at harvest to ensure they are below 0.3% for THC, but then are altered.

“Part of the problem is because a lot of the products that are being sold have higher intoxicating levels,’’ Heffernan told WHYY News.

Paul Hyland, the state’s deputy marijuana commissioner, said officials are concerned that “some businesses sell illicit products that shouldn’t be available for sale anywhere,’’ including ones that “go through a chemical process and change CBD into an intoxicating substance.”

Deputy Marijuana Comissioner Paul Hyland said CBD stores should be able to sell products with less than 0.3% of THC. (Cris Barrish/WHYY)

“Those are very dangerous because they’re not well studied,” he added. “So those things should just be taken off the market, so that is the target for us.”

But during a legislative hearing last month, several CBD store owners described how the bill, if enacted, would devastate their operations.

One entrepreneur who sounded the alarm was Michael Plump, who with his wife Yvonne, owns Sunmed CBD in the western Sussex County town of Delmar.

“We are not a smoke shop, we’re not a vape shop, we’re not a corner store. We’re a dedicated health and wellness store that sells hemp-based products,’’ Michael Plump told lawmakers, lobbyists, regulators, fellow entrepreneurs and advocates who crowded into a room in Legislative Hall for a House committee hearing.

“Passage of this bill would put us out of business. We are educated and trained at how to tell people to use the product and what to use. We actually have physicians referring patients to us for products to help them. Hemp should be separated from marijuana.”

Ginefra agrees.

“It would affect our store in a big way because full spectrum hemp products contain THC and some of the most effective CBD products also have a trace of THC,’’ said Ginefra, who added that laboratories test his products to ensure their THC content is less than 0.3%.

Cirwithian said she doesn’t want the state to force her to visit a retail weed store to purchase her cannabinoid products.

“Absolutely not,’’ she said. “Jesse, he’s a small business guy. What he does, he’s passionate about. Whereas a marijuana dispensary or that type of establishment is merely about the bottom line.”

Lawmakers have heard the fervent pleas and for now, at least, the prospect that those in the hemp industry won’t be able to sell their staple of gummies, creams and oils is not an imminent one.

The current legislative session ends June 30, and Rep. Heffernan, a northern New Castle County Democrat, said she’s decided to remove the provisions regarding hemp from the bill that had advanced to the House floor — with the hemp provisions intact — for a vote.

“We listened to all the public comment, to all different emails we received, and we decided that what we would do was work with the stakeholders, businesses, marijuana retailers and our new marijuana commissioner’’ before proposing a new bill to put legal safeguards around cannabinoids, Heffernan told WHYY News.

“We felt that with all the comments, that that needed to be addressed in a more thoughtful manner.”

The state’s marijuana commissioner, Joshua Sanderlin, had no comment. Sanderlin, appointed by new Gov. Matt Meyer, didn’t take office until May 16, three days after the contentious hearing where cannabinoid store owners railed against the bill.

State Rep. Claire Snyder-Hall, a Rehoboth Beach-area Democrat, said she thought “it was odd’’ that the bill contained the provision that affected the CBD stores.

“I would not support a bill that tries to shut down the hemp industry,’’ Snyder-Hall said. “It’s small businesses selling products that people use for a range of reasons, and there’s no reason to regulate hemp like you regulate cannabis. It’s not the same thing.”

State Rep. Claire Snyder-Hall doesn’t think hemp products with low-level THC should have to be sold in marijuana retail stores. (State of Delaware)

“I do not think hemp products should have to be sold in the marijuana dispensaries. I think they’re doing fine as they are and they should just be left where they are.”

‘A lot of them sell low-level THC products that are federally legal’

Heffernan insisted, however, that the bill does not target legitimate CBD and other stores that sold products with less than 0.3% THC, and that those who have complained are mistaken.

“I think it’s a misunderstanding because the products that we originally were putting in [the bill] were those at intoxicating levels of THC,’’ she said.

The language in the bill she introduced, and is now pulling, says otherwise, however.

These gummies for sale at Botana Organics have low levels of THC that are legal under the 2018 federal Farm Bill. (Cris Barrish/WHYY)

The bill stipulates that any “consumable hemp product’’ must be sold at a marijuana retail store. The bill defined consumable hemp as “a commodity containing THC that is manufactured from hemp or marijuana” and did not specify any level that would exclude it from being banned from stores other than retail weed establishments.

The bill makes no distinction between products with THC below 0.3% and those with higher concentrations of the intoxicating compound.

Jena Murray, a Sussex County resident who is president of the U.S. Hemp Roundtable advocacy group, said it’s clear the bill introduced last month goes too far.

Under its provisions, “any hemp product with any amount of THC in it, even if it’s a very, very minor amount, would not be able to be sold anywhere besides in a retail marijuana dispensary,’’ Murray said.

“That is why all of these companies would go out of business, because a lot of them sell low-level THC products that are federally legal under the 2018 Farm Bill as hemp.”

Hyland said he was consulted before the legislation was drafted but didn’t have a hand in writing it.

“If a health and wellness place wanted to sell full spectrum CBD” that contains less than 0.3% of THC, “I don’t have a problem with that,’’ Hyland said. “So if that’s in the bill that that way, that probably needs to be changed.’’

So now officials and lawmakers are going back to the drawing board, and hope to produce a draft by January, the start of the 2026 legislative session.

“And then we’re going to try again,’’ Hyland said, “with a different approach.”

CBD store owners spoke out forcefully against the bill during a House committee hearing last month. (State of Delaware)

Hemp advocate says lawmakers ‘don’t understand’ the industry

While Ginefra and others who sell hemp products think the state is now beholden to the new legal marijuana industry at their expense, Murray chalks up the controversy to the  complicated nature of hemp products and how much THC they contain.

She recently met with Hyland and other state officials at a Sunmed store in Delaware to help them understand the distinctions, saying that they reviewed legitimate products that would’ve been impacted by the bill.

“I just think it comes down to education and I think that a lot of the lawmakers and people involved don’t understand that there can be a hemp gummy that has 5 milligrams of THC in it that is legal,” she said.

Murray pointed out that during the May legislative hearing, Rep. Heffernan said the legal amount of THC is “below 0.3.” The lawmaker also noted that she has “learned all this now.’’

“That’s not correct. It’s 0.3%,” Murray said.

That means that in a 5 gram gummy, “you legally could get 15 milligrams of THC into that gummy.”

So Murray doesn’t think Heffernan and other lawmakers are being disingenuous or dishonest, just that “there is a lot of lack of understanding” around the products.

“I think they are trying to figure out how to regulate THC without understanding that low-dose THC exists and that low-dose THC done with regulation can be done right,’’ she said.

These CBD sweets for sale at Botana Organics have low levels of THC, the intoxicating ingredient in marijuana. (Cris Barrish/WHYY)

Zoe Patchell, who heads the Delaware Cannabis Advocacy Network and has worked for several years to get marijuana legalized and sold in regulated stores, said lawmakers don’t seem to understand that hemp and cannabis are different and the bill Heffernan introduced reflects that.

“It would put all these businesses that are safely and responsibly selling these products containing these cannabinoids completely out of business,’’ she said. “They should be able operate without having their businesses sold out from underneath them to a small number of licensed cannabis dispensaries.”

Murray does agree that some stores that don’t specialize in cannabinoid products, such as CBD and low-dose THC products, are selling goods that contain higher levels of THC. She calls them “the bad guys.”

“They’re using fake test results. Some of them aren’t even manipulating a real test result,’’ Murray said.

“They’re creating fake labs, names and everything and getting these fake certificates of analysis that on paper look like the products are legal, but when you send them out to an independent third-party lab, the testing comes back well above that 0.3% threshold. And they’re so they’re fudging test results.”

‘We had a problem but it was not something we did on purpose’

One store a few miles from Botana ran into a problem last year with products that exceeded the 0.3% THC limit.

It’s Marley Smoke Shop, which sells not only gummies, oils and leaf CBD products with THC, but also bongs and water pipes as well as vaping items and smokable tobacco products.

Manager Adam Alz told WHYY News he received a cease and desist letter from state regulators and took the items off his shelves.

“All the stuff we sell is below the legal limit. We try to keep it below the legal limit,” Alz said. “We had a problem but it was not something we did on purpose. It was something with a company we were working with. As soon as we got a warning from it, I checked my stuff, I reached out to every person I get my stuff from, got it all off the shelf.”

Adam Alz, who manages Marley Smoke Shop north of Wilmington, says he’s removed products that have higher levels of THC after receiving notice from the state. (Cris Barrish/WHYY)

Alz stressed that he doesn’t sell anything to someone unless they are 21 years old but wants to stay on the right side of the law.

“I check everything before I get it in here. I ask questions. If there is anything that’s over the limit, it’s not something that we’ve done on purpose or we put on the shelf on purpose or we even advertise,” he said.