The Delaware Senate approved a pair of House-passed bills to legalize marijuana possession and establish regulations for an adult-use cannabis market on Tuesday, sending them to the governor.
The simple legalization proposal cleared the chamber in a 16-4 vote, while the regulatory measure passed in a 15-5 vote. Both pieces of legislation, which moved through Senate committees before advancing to the floor, are being sponsored by Rep. Ed Osienski (D).
“The legalization of adult-use recreational marijuana is inevitable because it is the will of the people,” Sen. Trey Paradee (D), who is carrying the legislation in the Senate, said ahead of the vote.
“Sixty percent of Delawareans believe that recreational use of marijuana should be legalized. That percentage will certainly grow quickly in the years to come,” he said. “The older generation that was fed Reefer Madness lies and propaganda is beginning to understand what the younger generation already knows: marijuana, by any measure, is far less harmful than alcohol, not as addictive as caffeine and nicotine and does not cause anywhere near the harmful side effects and astronomical health-related costs and consequences of tobacco and nicotine products.”
The sponsor took a similar, bifurcated approach for the reform last session and saw the legislature pass the basic legalization proposal while narrowly defeating the regulatory measure. Gov. John Carney (D) vetoed the former legislation, and the House didn’t have to votes for an override.
Osienski recently said that if the governor seeks to veto the legislation again this time, he’s “optimistic” and feels “pretty good” that they have the votes for an override.
“I think my colleagues are saying, ‘OK, you know, you had one shot at vetoing this, you did and you were successful, but don’t count on us supporting that veto again,’” he said.
Both the simple legalization bill and the sales regulation measure cleared both chambers with more than enough votes to override any potential veto.
Emily Hershman, the governor’s director of communications, told Marijuana Moment on Tuesday that he “continues to have strong concerns about the unintended consequences of legalizing marijuana for recreational use in our state, especially about the impacts on our young people and highway safety.”
“He knows others have honest disagreements on this issue,” she said. “But we don’t have anything new to share today about how the governor will act on HB 1 and HB 2 if they reach his desk.”
Here’s what the HB 1 legalization bill would accomplish:
State statute would be revised to legalize the possession, use, sharing and purchasing of up to one ounce of cannabis for adults 21 and older.
To avoid abuses of the “gifting” provision, the bill stipulates that “adult sharing” would not include giving away cannabis “contemporaneously with another reciprocal transaction between the same parties” such as an exchange of a non-marijuana item.
Public consumption and growing cannabis would remain prohibited.
People under 21 who engage in such activity would be subject to a civil penalty of up to $100 for a first offense. Police could use discretion and issue a citation in lieu of that fine, however.
Here’s an overview of the key provisions of the HB 2 regulatory bill:
The legislation would provide a basic framework to create a regulated system of cannabis commerce for adults in the state.
The Division of Alcohol and Tobacco Enforcement (DATE) would be responsible for regulating the market through a new Office of Marijuana Control Commissioner.
For the first 16 months of implementation, regulators could approve up to 30 cannabis retail licenses.
Applicants who show that they’d provide a living wage, health insurance coverage, sick and paid leave and focus on diversity in hiring would be prioritized in the licensing scoring process.
Seven percent of marijuana business fee revenue would go to a “Justice Reinvestment Fund” that supports restorative justice, workforce development, technical assistance for economically disadvantaged people and more.
That fund would also go toward “creating or developing technology to assist with the restoration of civil rights and expungement of criminal records.” However, the legislation itself doesn’t provide for automatic expungements.
In additional to conventional retail, cultivator, manufacturer and laboratory licenses, the bill would additional provide for social equity and microbusiness licenses (reserved for applicants with majority ownership by Delaware residents).
Localities would be able to prohibit marijuana businesses from operating in their area through ordinance.
Adult-use marijuana sales would be subject to a 15 percent sales tax. Medical cannabis products would not be taxed.
Prior to Tuesday’s vote on HB 2, members rejected two GOP-led amendments. One would have revised the structure of the cannabis regulatory commission and allowed people subject to fines, license suspensions or license revocations to request documents from regulators that are relevant to the action. The other would have removed references to labor peace agreement requirements for marijuana businesses.
Marijuana Moment is tracking more than 1,000 cannabis, psychedelics and drug policy bills in state legislatures and Congress this year. Patreon supporters pledging at least $25/month get access to our interactive maps, charts and hearing calendar so they don’t miss any developments.
Learn more about our marijuana bill tracker and become a supporter on Patreon to get access.
Advocates are increasingly optimistic about the legislation’s prospects given that last year’s election added more progressive lawmakers to the legislature. Regional developments, with surrounding states enacting legalization, are also putting pressure on Delaware lawmakers.
“With this latest vote, the fight to legalize cannabis in Delaware is nearing the finish line,” Olivia Naugle, a senior policy analyst with the Marijuana Policy Project, said in a press release. “Cannabis policy reform has garnered widespread support among Delawareans for years. Meanwhile, neighboring states have already made the move to legalize cannabis.”
It’s encouraging to see the legislature advance these bills with veto-proof majorities,” she said. “We hope Gov. Carney will heed the will of the people and allow Delaware to become the 22nd state to legalize cannabis. Any further delay to cannabis legalization would be a detriment to the state”
Because the regulatory bill includes tax components, it required a three-fifths majority of lawmakers to approve it. The basic legalization measure only needed a simple majority.
Osienski made the calculated decision to break up the measures in the previous session after an earlier proposal that included both components was rejected in the House because it failed to reach the three-fifths vote requirement.
Shortly after the House passed the latest versions of the legalization measures last week, the Senate approved a resolution that urges the state’s congressional representatives to support legislation to end federal cannabis prohibition.
Separately, in October, Carney vetoed a more narrowly tailored bill that would have clarified that medical marijuana patients are not prohibited from buying, possessing or transferring firearms under state law
A strong majority of Delaware voters support legalizing marijuana—including nearly three in four Democrats who back the reform that the state’s Democratic governor vetoed last year, according to a poll released that month.
Photo courtesy of Philip Steffan.