Delaware Senate Tells Congress To End Federal Marijuana Prohibition As State Moves To Enact Legalization

As Delaware lawmakers move closer to enacting marijuana legalization this session, the Senate approved a resolution on Thursday that urges the state’s congressional representatives to support legislation to end federal cannabis prohibition.

The measure from Rep. Eric Buckson (R) cleared the chamber in a near-unanimous 15-1 vote, on the same week that the House passed complementary legalization and sales regulation bills.

There “whereas” section of the resolution starts by describing how marijuana remains a Schedule I drug under the federal Controlled Substances Act (CSA) despite the scientific consensus that cannabis has established medical benefits for certain conditions like pain and multiple sclerosis.

It explains how prohibition has meant that medical marijuana patients make large out-of-pocket expenses for their medicine, with access to insurance coverage options.

Also, the resolution says, “due to the current federal designation, monies that can be traced back to a state marijuana operation could be considered aiding and abetting a federal crime and money laundering.”

The measure adds that the Schedule I status of cannabis makes many banks averse to servicing state-legal marijuana businesses, creating a largely cash-based industry model that puts people at a unique risk of being targets of crime.

“Whereas, marijuana does not belong in Schedule I of the Controlled Substances Act, a classification intended for exceptionally dangerous substances with high potential for abuse and no medical use,” the resolution text says. “Now, therefore, be it resolved by the Senate of the 152nd General Assembly that we urge our federal delegation to support  legislation to deschedule marijuana.”


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With the message sent to Delaware’s congressional delegation that the state body is looking for federal reform, senators are now tasked with taking up the House-passed, state-level marijuana legalization and sales bills.

The Senate Health & Social Services Committee is scheduled to consider the two proposals on Wednesday.

Rep. Ed Osienski (D) is sponsoring both the simple legalization bill, HB 1, and this sales measure, HB 2.

The House 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 told 47 ABC News 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 cannabis bills bill cleared the House this session with more than enough votes to override a potential veto.

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.

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.

Because the regulatory bill includes tax components, it requires a three-fifths majority of lawmakers to approve it. The basic legalization measure only needs 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.

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.

Maryland House Approves Bill To Regulate Marijuana Sales As Senators Hold Hearing On Companion Version

Photo courtesy of Brian Shamblen.

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