Is THCA legal in Delaware? Delaware hemp, CBD, drink and kratom laws

The law in Delaware

Delaware's hemp definition counts only delta-9 THC. Section 2801 of Title 3, part of the Industrial Hemp Research Act, sets industrial hemp at no more than 0.3 percent delta-9 THC on a dry weight basis, with no mention of THCA or total THC, and section 4701 of Title 16 leaves industrial hemp under that definition out of marijuana. No Delaware statute sets a per-serving or per-container THC limit for hemp products.

Lawmakers tried to change that in 2026 and did not finish. HB 395, which would have required consumable products above a set THC level, whatever their source, to be sold only through licensed adult-use marijuana stores, was in the Senate Health and Social Services Committee when the 153rd General Assembly ended. A competing hemp licensing bill, House Substitute 2 for HB 401, was reported out of committee on June 30, 2026 and also was not enacted.

1. January 27, 2020The USDA approves Delaware's plan for a domestic hemp production program.
2. April 27, 2023The Delaware Marijuana Control Act becomes law without the Governor's signature.
3. July 23, 2026HB 373 is approved, allowing hemp delta-9 drinks at package stores and marijuana stores.
4. September 8, 2026The Kratom Consumer Protection Act is signed and takes effect, setting an age of 21.
5. December 11, 2026The federal limit of 0.4 mg total THC per container begins.

THCA and delta-8

Because the hemp definition counts only delta-9 THC, the code does not say whether hemp flower high in THCA is hemp or marijuana. Schedule I in section 4714 of Title 16 lists any material, synthetic substitute or preparation containing marijuana or any tetrahydrocannabinols, their salts or isomers, that the FDA has not approved, and the definition of marijuana excludes industrial hemp. We found no Delaware rule, Attorney General opinion or appeals court ruling that applies these provisions to THCA flower or to delta-8 THC.

At the farm, the Department of Agriculture licenses hemp producers, processors and handlers under Regulation 805. It takes one regulatory sample per lot within 15 days of harvest and measures delta-9 THC after decarboxylation, and a lot over 0.3 percent must be destroyed or remediated. Marijuana itself is sold to adults 21 and older by retail marijuana stores licensed under the Delaware Marijuana Control Act, which became law without the Governor's signature on April 27, 2023.

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Hemp THC drinks

HB 373, approved on July 23, 2026 as 85 Del. Laws chapter 394, created a category called infused beverages. The law takes effect 90 days after enactment. An infused beverage may contain no alcohol and no THC except delta-9 extract, defined as THC that comes directly from oil or concentrate produced under the USDA hemp program and is not converted or synthesized from other cannabinoids. A single-serving container must hold at least 12 ounces and no more than 10 mg; a multipack is capped at 60 mg and a 750 ml bottle at 170 mg.

Only manufacturers holding an infused beverage endorsement from the Marijuana Commissioner may make them, and only package stores with an infused beverage permit and retail marijuana stores may sell them. Section 708 of Title 4, as amended, bars selling any infused beverage to anyone under 21. A tax on the drinks under a new section 581A begins on February 1, 2027. Section 4 of the act ends every infused beverage license and authorization automatically on the effective date of the federal Section 781 hemp amendments, or of any later federal law that would make such drinks controlled substances.

CBD and other hemp products

The same 2026 law added section 1313A to the Marijuana Control Act. It says nothing in that act restricts making or selling hemp or cannabinoid products other than infused beverages, so long as they comply with federal and state hemp law and other food, drug and consumer safety rules, and that a hemp store that sells no marijuana or infused beverages needs no license under the act. A product is not marijuana solely because it contains CBD, CBG, CBN, CBC or up to 0.3 percent delta-9 THC by dry weight.

We found no Delaware statute that sets a minimum age for buying hemp-derived products other than infused beverages, and none that names CBD in food or sets labeling rules for hemp products sold in ordinary stores.

Kratom, kava, amanita and spores

House Substitute 1 for HB 332, signed and effective on September 8, 2026, created the Kratom Consumer Protection Act in chapter 30S of Title 16. Section 3002S makes selling, giving or marketing kratom or a kratom product to anyone under 21 a class B misdemeanor. Marketing covers cartoons, superheroes, video game references, images of anyone who appears under 27, and products displayed where people under 21 can reach them. A photo ID showing an age of 21 or older is an affirmative defense.

The act also directs the Division of Alcohol and Tobacco Enforcement, with the Department of Health and Social Services, to report by January 1, 2027 on kratom testing and possible retail licensing, including natural kratom, synthetic kratom and concentrated 7-hydroxymitragynine products. Psilocybin and psilocyn are Schedule I under section 4714. We found no Delaware statute naming kava, amanita muscaria or mushroom spores.

The federal change on December 11

From December 11, 2026, the federal definition counts total THC including THCA and limits a finished hemp-derived cannabinoid product to 0.4 mg per container. Read the federal page and What's changing on December 11.