DOVER, Del. (April 24, 2023) – On Sunday, two bills that together legalize marijuana for adult use and create a regulatory structure for cannabis commerce in the state became law without the governor’s signature despite ongoing federal cannabis prohibition.
Rep. Ed Osienski (D) was the chief sponsor of both House Bill 1 (HB1) and House Bill (HB2). Together, the two bills legalize marijuana and create a regulatory and tax structure for the commercial cultivation and sale of cannabis in Delaware.
On March 28, the Senate passed HB1 by a 16-4 vote and approved HB2 by a 15-5 vote. The House previously passed HB1 by a 28-13 vote and HB2 by a 27-13 vote. On April 21, Gov. John Carney said he would allow the bills to go into effect without his signature.
On Sunday, HB1 went into immediate effect. It will take about 16 months the get the structure in place for commercial cultivation and retail sales.
Carney reiterated that he does not think legalizing recreational marijuana is a step forward, but said, “We’ve spent far too much time focused on this issue when Delawareans face more serious and pressing concerns every day. It’s time to move on.”
DETAILS OF THE BILLS
HB1 removes the current $100 civil penalty for the possession and consumption of up to one ounce of marijuana by adults over 21. The legislation also makes the following cannabis-related activities affirmatively legal.
(1) Adult sharing of a personal use quantity or less of marijuana.
(2) Possessing , using, displaying, purchasing, or transporting marijuana accessories or a personal use quantity or less of marijuana outside of a motor vehicle.
(3) Possessing and transporting marijuana accessories or a personal use quantity or less of marijuana, inside of a motor vehicle as long as the marijuana accessories or marijuana is in a closed container or is not readily accessible to anyone inside the motor vehicle.
(4) Assisting another individual who is 21 years of age or older in any of the above acts.
“Adult sharing” is defined as “transferring marijuana between persons who are 21 years of age or older without remuneration.”
“Personal use quantity is defined as “1 ounce or less of marijuana in the form of leaf marijuana, 12 grams or less of concentrated cannabis, or cannabis products containing 750 milligrams or less of delta-9-tetrahydrocannabinol.”
HB2 creates a basic system for regulating and taxing a commercial marijuana market in the state under the control of the Division of Alcohol and Tobacco Enforcement (DATE). The bill provides for up to 30 cannabis retail licenses in the first 16 months. It also includes provisions to regulate the commercial cultivation of marijuana.
Osienski took a similar two-pronged approach in 2022. Legalization passed last year, but the regulatory scheme was narrowly defeated. Gov. John Carney (D) vetoed the decriminalization bill.
The House and Senate passed both HB1 and HB2 with veto-proof majorities. Osienski told Marijuana Moment he is optimistic that the legislature would override a veto.
“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.’”
EFFECT ON FEDERAL PROHIBITION
Delaware legalized medical marijuana in 2011 and decriminalized the possession or consumption of a “personal-use quantity” of marijuana for adults 21 or over in 2015. Last year, the state decriminalized marijuana possession by minors despite ongoing federal cannabis prohibition.
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
The legalization of marijuana for personal use in Delaware takes the next step and removes another layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
A GROWING MOVEMENT
Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. In 2021, New York, New Mexico, Virginia and Connecticut legalized marijuana through legislative action, and Rhode Island legalized cannabis for adult use in 2022. With Missouri and Maryland legalizing marijuana in November, and Delaware joining this week, there are now 37 states allowing cannabis for medical use, and 22 legalizing for adult recreational use.
The lesson here is pretty straightforward. As Tenth Amendment Center Executive Director Michael Boldin noted, “When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.”
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