The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Agriculture
BILL: SB 1766
INTRODUCER: Senator Powell
SUBJECT: Sale of Hemp-derived Delta-8-tetrahydrocannabinol
DATE: March 16, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Becker Becker AG Pre-meeting
2. CJ
3. RC
I. Summary:
SB 1788 creates s. 581.218, F.S., to regulate the sale of hemp-derived delta-8-
tetrahydrocannabinol (delta-8-THC) products. It provides definitions for certain terms relating to
the sale of delta-8-THC products.
The bill specifies that a sale of hemp-derived dela-8-THC products constitutes a delivery sale
regardless of whether the person accepting the order for the delivery is located in Florida. A
retailer who mails or ships any hemp-derived delta-8-THC products must:
Obtain a certification from the consumer who is purchasing the product that he or she is
21 years of age or older;
Include as part of the order’s shipping documents, in a clear and conspicuous manner, the
following statement: “Hemp-derived Delta-8-Tetrahydrocannabinol Products: Florida law
prohibits shipping to individuals under 21 years of age and requires the payment of all
applicable taxes”; and
Be in compliance with any labeling requirements, pursuant to Department of Agriculture and
Consumer Services rule for the state hemp program.
The bill outlines specific violations that are misdemeanors of the first degree.
The bill is effective July 1, 2021
BILL: SB 1766 Page 2
II. Present Situation:
Industrial Hemp
Industrial hemp is a Cannabis sativa plant (cannabis) that has been cultivated for approximately
10,000 years as a fiber and grain crop. It is used for fiber, building materials, forages (animal
feed), and pain relief as a topical oil.1
Cannabis
Cannabis is a Schedule I controlled substance.2 It is a felony of the third degree3 to sell,
manufacture, deliver, or possess with intent to sell, manufacture, or deliver, cannabis in Florida.4
As a controlled substance in ch. 893, F.S., “cannabis” is defined to mean: all parts of any plant of
the genus Cannabis, 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 or its seeds or resin. The term does not include “marijuana,” as defined in s. 381.986, F.S.,
if manufactured, possessed, sold, purchased, delivered, distributed, or dispensed, in conformance
with s. 381.986, F.S., [the Compassionate Medical Cannabis Act of 2014], hemp as defined in
s. 581.217, F.S., [the state hemp program], or industrial hemp as defined in s. 1004.4473, F.S.,
[industrial hemp pilot projects].5
Medical Marijuana
On November 4, 2016, Amendment 2 was approved by the electors and is codified in Article X,
section 29, of the Florida Constitution. This section of the constitution became effective on
January 3, 2017, and created several exemptions from criminal and civil liability for:
Qualifying patients medically using marijuana in compliance with the amendment;
Physicians, solely for issuing physician certifications with reasonable care and in compliance
with the amendment; and
Medical marijuana treatment centers (MMTCs), their agents, and employees for actions or
conduct under the amendment and in compliance with rules promulgated by the Florida
Department of Health.
Subsequently, the Legislature passed SB 8-A in Special Session A of 2017.6 The bill revised the
Compassionate Medical Cannabis Act of 20147 in s. 381.986, F.S., to implement Article X,
section 29 of the Florida Constitution.
The term medical marijuana includes two distinct forms of the plant genus Cannabis:
1
See University of Florida, UF/IFAS Industrial Hemp Pilot Project at: https://programs.ifas.ufl.edu/hemp/ (last visited
March 15, 2021).
2
Section 893.03(1)(c)7., F.S.
3
Section 775.082, F.S., provides that a felony of the third degree is punishable by a term of imprisonment not to exceed
5 years. Section 775.083, F.S., provides that a felony of the third degree is punishable by a fine not to exceed $5,000.
4
Section 893.13(1)(a)2., F.S.
5
Section 893.02(3), F.S.
6
Chapter 2017-232, Laws of Fla.
7
Chapter 2014-157, Laws of Fla.
BILL: SB 1766 Page 3
Marijuana without any limitation or restriction on the percentage of THC;8 and
“Low-THC cannabis” in which the percentage of THC is limited to 0.8 percent or less and
has more than 10 percent of cannabidiol9 weight for weight.10
The Coalition for Medical Marijuana Research and Education located at the H. Lee Moffitt
Cancer Center and Research Institute, Inc., is authorized to conduct medical marijuana research
and education.11
A MMTC and a qualified patient or caregiver are specifically exempt from the criminal
prohibition against the possession of cannabis.12
2014 Federal Farm Bill and State Industrial Hemp Pilot Programs
The Agricultural Improvement Act of 2014 (2014 Farm Bill) defined industrial hemp and
allowed state departments of agriculture or universities to grow and produce industrial hemp as
part of research or pilot programs. Specifically, the law allowed universities and state
departments of agriculture to grow or cultivate industrial hemp if:
The industrial hemp is grown or cultivated for purposes of research conducted under an
agricultural pilot program or other agricultural or academic research; and
The growing or cultivating of industrial hemp is allowed under the laws of the state in which
such institution of higher education or state department of agriculture is located and such
research occurs.13
The 2014 Farm Bill defines “industrial hemp” to mean:
…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, whether
growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than
0.3 percent on a dry weight basis.14
Section 1004.4473, F.S., authorizes the Florida Department of Agriculture and Consumer
Services (department) to oversee the development of industrial hemp pilot projects for the
Institute of Food and Agricultural Sciences (IFAS) at the University of Florida, Florida
Agricultural and Mechanical University, any land grant university in the state that has a college
of agriculture, and any Florida College System institution or state university that has an
established agriculture, engineering, or pharmacy program.15 The purpose of the pilot projects is
8
THC, or tetrahydrocannabinol, is the main active ingredient in cannabis and is responsible for most of the psychological
effects of cannabis.
9
Cannabidiol (CBD) is a chemical compound, known as a cannabinoid, found in cannabis. CBD does not have the same
psychoactivity as THC. See Michael J Breus, Despite What You May Think... CBD Is Not Weed (Sept. 20, 2018), Psychology
Today, available at: https://www.psychologytoday.com/us/blog/sleep-newzzz/201809/despite-what-you-may-think-cbd-is-
not-weed (last visited March 15, 2021).
10
See ss. 381.986(1)(e) and (f), F.S.
11
Section 1004.4351, F.S.
12
See s. 381.986(14), F.S.
13
Agricultural Improvement Act of 2014, Pub. L. No. 113-79, s. 7606, 128 Stat. 912 (2014) (codified at 7 U.S.C. s. 5940).
14
Id.
15
Section 1004.4473(2)(a), F.S.
BILL: SB 1766 Page 4
to cultivate, process, test, research, create, and market safe and effective commercial applications
for industrial hemp in the agricultural sector in this state. The department has adopted a rule
addressing safety, compliance, and accountability and other concerns.16
2018 Federal Farm Bill
In the Agricultural Improvement Act of 2018 (2018 Farm Bill), the U.S. Congress legalized
industrial hemp as an agricultural product by removing hemp’s classification as a controlled
substance.17 The 2018 Farm Bill defines “hemp” to mean:
…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, whether
growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than
0.3 percent on a dry weight basis.18
The 2018 Farm Bill allows a state department of agriculture or an Indian tribe to submit a plan to
the United States Secretary of Agriculture and apply for primary regulatory authority over the
production of hemp in their state or tribal territory. A state or tribal plan must include:
A procedure for tracking land upon which hemp will be produced;
Testing methods for determining THC concentration levels of hemp;
Methods for effective disposal of noncompliant products;
Enforcement procedures;
Inspection procedures; and
Certification procedures for the persons authorized to produce hemp producers, test hemp
products, inspect hemp producers, and enforce the provisions of the state or tribal plan.19
State Hemp Program
The state hemp program was created within the department to regulate the cultivation of hemp in
Florida.20
Section 581.217(3)(d), F.S., defines the term “hemp” to mean:
…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.
16
Fla. Admin. Code R. 5B-57.013 (2018).
17
Agricultural Improvement Act of 2018, Pub. L. No. 115-334, s. 12619, 132 Stat. 409 (2018) (codified at
21 U.S.C 802(16)).
18
Agricultural Improvement Act of 2018, Pub. L. No. 115-334, s. 10113, 132 Stat. 409 (2018) (codified at 7 U.S.C.
s. 1639o).
19
Agricultural Improvement Act of 2018, Pub. L. No. 115-334, s. 10113, 132 Stat. 409 (2018) (codified at 7 U.S.C.
s. 1639p).
20
See s. 581.217, F.S.
BILL: SB 1766 Page 5
Section 581.217(3)(e), F.S., defines the term “hemp extract” to mean “a substance or compound
intended for ingestion, containing more than trace amounts of cannabinoid, or for inhalation
which is derived from or contains hemp and which does not contain other controlled substances.”
The term does not include synthetic CBD or seeds or seed-derived ingredients that are generally
recognized as safe by the United States Food and Drug Administration.21 Products that are
intended for inhalation and contain hemp extract may not be sold in this state to a person who is
under 21 years of age.22
The department is required to seek federal approval of the state plan for the regulation of the
cultivation of hemp with the United States Secretary of Agriculture (USDA) in accordance with
the 2018 Farm Bill within 30 days of adopting rules.23 A license is required to cultivate hemp24
and to obtain a license, a person must apply to the department and submit a full set of
fingerprints.25 A person seeking to cultivate hemp must provide the department with a legal land
description and GPS coordinates of where the hemp will be cultivated.26 The department must
deny an application under certain circumstances.27
Delta-8-tetrahydrocannabinol
Delta-8-tetrahydrocannabinol (delta-8-THC) is not regulated under Florida law. Delta-8-THC is
only slightly chemically different from delta-9-tetrahydrocannabinol (delta-9-THC), which is the
main psychoactive ingredient in marijuana. Under federal law, psychoactive delta-9-THC is
outlawed but delta-8-THC derived from hemp is not.28
III. Effect of Proposed Changes:
Section 1 creates s. 581.218, F.S., to regulate the sale of hemp-derived delta-8-
tetrahydrocannabinol (delta-8-THC) products. It provides definitions for the terms “consumer,”
“delivery sale,” “delivery service,” “hemp,” “hemp-derived delta-8-tetrahydrocannabinol,”
“mail,” “retailer,” and “shipping document.”
The bill specifies that a sale of hemp-derived dela-8-THC products constitutes a delivery sale
regardless of whether the person accepting the order for the delivery is located in Florida. A
retailer may not sell hemp-derived delta-8-THC products to a consumer who is under 21 years of
age and must provide notice of such in a prominent and clearly legible statement. A retailer who
mails or ships any hemp-derived delta-8-THC products must:
Obtain a certification from the consumer who is purchasing the product that he or she is
21 years of age or older;
21
Section 581.219(3)(e), F.S.
22
Section 581.217(7)(c), F.S.
23
Section 581.217(4), F.S.
24
Section 581.217(5)(a), F.S.
25
Section 581.217(5)(b), F.S.
26
Section 581.217(5)(d), F.S.
27
Section 581.217(5)(e), F.S.
28
Kalifa, Tamir, “This Drug Gets You High, and is Legal (Maybe) Across the Country,” The New York Times,
February 27, 2021. Available at https://www.nytimes.com/2021/02/27/health/marijuana-hemp-delta-8-thc.html (last visited
March 15, 2021).
BILL: SB 1766 Page 6
Include as part of the order’s shipping documents, in a clear and conspicuous manner, the
following statement: “Hemp-derived Delta-8-Tetrahydrocannabinol Products: Florida law
prohibits shipping to individuals under 21 years of age and requires the payment of all
applicable taxes”; and
Be in compliance with any labeling requirements, pursuant to Department of Agriculture and
Consumer Services rule for the state hemp program.
A person who violates this section who is 21 years of age or older commits a misdemeanor of the
first degree, punishable as provided in s. 775.082, F.S., or s. 775.083, F.S.,29 and:
For a first violation, the person shall be fined $1,000 or 5 times the retail value of the product
involved in the violation, whichever is greater.
For a second or subsequent violation, the person shall be $5,000 or 5 times the retail value of
the product involved in the violation, whichever is greater.
A person who is 21 years of age or older and knowingly submits a false certification of a
consumer’s age commits a misdemeanor of the first degree, punishable as provided in s. 775.082,
F.S., or s. 775.083, F.S. For each offense, the individual shall be fined $5,000 or 5 times the
retail value of the product involved in the violation, whichever is greater. A person who, in
connection with a delivery sale, delivers a hemp-derived delta-8-THC product on behalf of an
individual who is not 21 years of age or older commits a misdemeanor of the first degree,
punishable as provided in s. 775.082, F.S., or s. 775.083, F.S. A person who is under 21 years of
age and who knowingly violates this section commits a misdemeanor of the first degree,
punishable as provided in s. 775.082, F.S., or s. 775.083, F.S.30
Section 2 provides an effective date of July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
29
A first degree misdemeanor is punishable by up to one year in jail and up to a $1,000 fine. Sections 775.082
and 775.083 F.S.
30
Id.
BILL: SB 1766 Page 7
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
Sellers of hemp-derived delta-8-THC