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Delaware Lawmakers Approve Marijuana Legalization Bill In Committee Vote



A much-anticipated bill to legalize marijuana in Delaware cleared its first committee hurdle on Wednesday after wide-ranging testimony about how and whether the state should enact the reform.

The legislation, HB 150, filed by Rep. Ed Osienski (D) last week, passed the House Health and Human Development Committee in a 10-5 vote despite vocal opposition from some Republican members of the panel.

“This act allows adults over the age of 21 to legally possess and consume under one ounce of marijuana for personal use,” Osienski said, “and creates the legal framework to license and regulate a new industry that will create well-paying jobs for Delawareans while striking a blow against the criminal element, which profits from the thriving illegal market in our state.”

The bill as introduced would establish a regulated commercial cannabis system and tax sales at 15 percent. Home cultivation for personal use, however, would remain illegal.

“This is the first step,” Osienski said of Wednesday’s hearing, noting that the goal of the meeting was to listen to concerns and and consider revisions. “We still have to go through Appropriations, and this bill will not be heard on the House floor until after our Easter break sometime, possibly end of April or early May.”

Gov. John Carney (D), meanwhile, has indicated that he “still has concerns about legalizing recreational marijuana.”

Osienski was the chief sponsor of an earlier reform bill that cleared a House committee in 2019 but did not advance through the full chamber. One major difference between this latest bill and the last version is that HB 150 would not allow existing medical cannabis dispensaries to start selling marijuana during the transitional period between enactment and full implementation, as the previous bill would have done.

The new bill would also provide a path for past marijuana convictions to be expunged and would establish a business licensing category for social equity applicants, defined as individuals who live in areas disproportionately impacted by prohibition, have been convicted of a marijuana offense or are the child of someone who faced such a conviction.

For the first 16 months of implementation, regulators could approve up to 30 retail business licenses, 30 manufacturing licenses and 60 cultivation licenses, as well as up to five laboratory testing licenses.

“Half of the first round of retail licenses and testing licenses, and a third of the cultivation and manufacturing licenses, will be awarded to the pool of social equity applicants,” Osienski said.

Most of the questions asked by panel members focused on the details of the proposed regulatory scheme, for example how license applications would be scored and how closely certain outcomes would be tracked, such as the creation of private jobs.

Others panelists used the hearing as an opportunity to criticize legalization in general. Reps. Rich Collins (R) and Ruth Briggs King (R), for example, challenged the bill’s assertion that legalizing marijuana would help shrink the state’s illicit market.

“These plants are worth—just one plant, thousands of dollars,” Collins incorrectly claimed at one point in the hearing. “The amount of corruption that will come about is beyond our imagining.”

He also complained that the bill as filed is nearly 50 pages long. “In Delaware, we have a tradition: Most of our bills are relatively short and easy to understand,” he said. “This is anything but.”

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Other critics raised concerns such as increased risk of impaired driving, the possibility legalization might increase marijuana use among minors and obstacles caused by ongoing cannabis prohibition at the federal level.

Among those who testified during public comment on the bill were representatives from state agencies, including the Department of Agriculture and Division of Public Health, who suggested a number of technical changes to the bill.

Nikko Brady, deputy principal assistant at the state Department of Agriculture, pointed out that the bill’s definition of cannabis seems to include low-THC hemp, which is already legal in the state and regulated by the Agriculture Department.

Brady and a representative from the Division of Public Health also suggested that lawmakers consider banning outdoor cultivation of marijuana, which they said could be subject to theft or environmental contamination.

The bill would retain penalties for impaired driving and allow employers to continue to drug test for cannabis and punish workers for being intoxicated on the job.

Incorporated cities would be allowed to ban cannabis businesses, while counties would have authority to set zoning restrictions. Marijuana could not be not be sold in the state on Christmas, Thanksgiving or Easter.

Applicants would be selected based on a scoring system that would also take into account factors such as whether the business will pay workers a living wage, provide health insurance and ensure a diverse workforce.

Rep. Bryan Shupe (R) said at the hearing that was worried about a provision that would score applicants higher if they enter a peace agreement with a labor union. Osienski defended the provision but stressed that it would be up to licensing authorities to determine how to weigh qualifications.

The bill’s 15 percent sales tax, described as a “marijuana control enforcement fee” would be be imposed at the point of sale for cannabis products. Revenue would first be appropriated to cover administrative costs, and then it would be up to the legislature to apportion any additional tax dollars.

Another member of the House panel, Rep. Eric Morrison (D), stressed the drug war’s racist history and pushed back against worries raised by Republicans.

“We know from empirical studies that in states and municipalities that have legalized cannabis, that there has been little to no uptick in the number of individuals consuming cannabis,” he said. “I find it interesting that some of my Republican colleagues are suddenly concerned about public health when they adamantly opposed raising the age for tobacco to 21.”

“Even if committee members do not personally support the passage of this legislation, please remember that a majority of Delawareans do—across all political parties and independent voters,” he added. “At the very least, this legislation deserves debate and a vote on the floor of the House of Representatives.”

Legalization advocates echoed the fact that legalization has broad support among state voters.

“A strong majority of Delawareans agree it is time to end cannabis prohibition and legalize cannabis for adults,” Olivia Naugle, a legislative analyst for the Marijuana Policy Project, said after the vote. “The committee’s approval of HB 150 today shows that elected officials increasingly agree. We hope the full House will also follow the will of their constituents and the committee’s lead by taking up and approving HB 150. Prohibition has failed, and Delaware deserves a more sensible and equitable cannabis policy.”

An analysis from State Auditor Kathy McGuiness (D) released in January found that Delaware could generate upwards of $43 million annually in revenue from regulating marijuana and imposing a 20 percent excise tax. The legal market could also create more than 1,000 new jobs over five years if the policy is enacted, according to the report.

A legalization bill previously received majority support on the House floor in 2018, but procedural rules required a supermajority for it to pass and it didn’t meet that threshold.

A spokesperson for the governor’s office said Carney “supported decriminalization and an expansion of Delaware’s medical marijuana program” but added that “he still has concerns about legalizing recreational marijuana.”

Despite his wariness, Carney did sign two pieces of marijuana expungement legislation in recent years. In 2017 and 2018, a state task force met to discuss issues related to legalization, and the governor hosted a series of roundtable meetings about cannabis.

Carney’s predecessor approved a measure to decriminalize simple possession of cannabis in 2015.

“We’re hopeful that 2021 may be the year Delaware ends its failed war on marijuana,” Karen O’Keefe, state policies director for the Marijuana Policy Project, told Marijuana Moment after HB 150 was filed. “Instead of sending cannabis consumers across the bridge to New Jersey, the First State can create good jobs and new small businesses, while generating tens of millions in tax dollars. Voters overwhelmingly support legalization, and elected officials are increasingly taking notice.”

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Ben Adlin, a senior editor at Marijuana Moment, has been covering cannabis and other drug policy issues professionally since 2011. He was previously a senior news editor at Leafly, an associate editor at the Los Angeles Daily Journal and a Coro Fellow in Public Affairs. He lives in Washington State.


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