Delaware lawmakers on Thursday introduced a much-anticipated bill to legalize marijuana in the state, though the governor’s ongoing concerns about the policy change continue to represent an obstacle.
The legislation, sponsored by Rep. Ed Osienski (D), would establish a regulated cannabis market and allow adults 21 and older to purchase and possess up to one ounce of marijuana. It would not provide a home cultivation option, however.
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. The proposal has since been modified, and it’s set to go before the House Health & Human Development Committee on March 24.
The bill calls for the appointment of a marijuana commissioner, which would issue regulations and licenses. The state’s Department of Safety and Homeland Security and Division of Alcohol and Tobacco Enforcement would also have regulatory responsibilities.
In terms of social equity and justice, the measure would provide a means to have prior marijuana records expunged. It would also establish a business licensing category for applicants 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.
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“These applicants would have access to technical assistance programs, reduced fees, an adjusted points scale, a waiver of the physical location requirement, and access to a revolving Social Equity Loan fund,” according to a press release from Osienski’s office.
For the first 16 months of implementation, regulators could approve up to 30 retail business licenses. Applicants would be selected based on a scoring system that would take into account factors such as whether the business will pay workers a living wage, provide health insurance and ensure a diverse workforce.
“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. “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.”
The bill would also create a “marijuana control enforcement fee”—a 15 percent sales tax—to be imposed at the point of sale for cannabis products. Lawmakers want to make sure that prices remain competitive with the illicit market to encourage people to utilize regulated shops.
Revenue would first be appropriated to cover administrative costs, and then it would be up to the legislature to apportion any additional tax dollars. That could be a point of concern for advocates who have often argued that reform legislation should explicitly earmark some funds for social equity purposes.
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.
One major difference between this latest bill and the last version is that it would no longer allow existing medical cannabis dispensaries to start selling marijuana during the transitional period between enactment and full implementation.
“Support for adult recreational marijuana has been growing for years in Delaware and across the country. We have seen other states successfully enact policies that established a safe and legal market for cannabis, and we have studied those laws to craft the best policy for Delaware,” Osienski said. “We believe we have a solid bill that has the support of the public, and we believe we have the political will to pass this bill into law.”
“We would be establishing a new industry that will create good-paying jobs for Delawareans while striking a blow against the marijuana illegal market,” he added. “We also listened to concerns from communities that have been historically impacted by the prohibition of marijuana, and to promote equity, we have included provisions so they can participate in this new market.”
The bill would retain penalties for impaired driving, allow employers to continue to drug test for cannabis and punish workers for being intoxicated on the job, and it would allow individual jurisdictions to ban cannabis businesses from operating in their area if approved via a local initiative.
Marijuana could not be sold on Christmas, Thanksgiving or Easter under the proposal, and localities would be allowed to ban cannabis businesses.
The legislation would also create a Delaware Marijuana Control Act Oversight Committee to “evaluate and make recommendations regarding the implementation,” the text states.
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.
While Gov. John Carney (D) is not in favor of legalization, he 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.
A spokesperson for the governor said that he “supported decriminalization and an expansion of Delaware’s medical marijuana program.” However, “he still has concerns about legalizing recreational marijuana.”
Carney’s predecessor approved a measure to decriminalize simple possession of cannabis in 2015.
“The time has come for us to replace an illegal market that has overwhelmed our court system and damaged lives with a legal, regulated and responsible industry that will create thousands of good-paying jobs in Delaware,” Sen. Trey Paradee (D), who is carrying the Senate companion version of the bill, said.
“We have seen the benefits of a thriving legal cannabis industry in 15 other states,” he said. “We have had time to study what works and what does not. This legislation is sound economic policy, strong social justice reform and a job creator that we absolutely should pass this year.”
Read the text of the new Delaware cannabis legalization bill below: