Delaware Governor Will Allow Adult-Use Cannabis Legislation to be Enacted Without His Signature

Delaware Gov. John Carney still doesn’t approve of adult-use cannabis, but he’s no longer going to stand in the way of legalization, which is now inevitable in his state.

Carney, who was the first Democratic governor to veto a cannabis bill last year, released a statement April 21 that he is now going to allow a pair of legalization bills become law in 2023 without his signature. Delaware will be the first state to legalize adult-use cannabis this year and the 22nd state to do so since Colorado and Washington pioneered the reform front in 2012.

The complementary legislation, House Bill 1 and House Bill 2, collectively known as the Delaware Marijuana Control Act, will legalization the possession of up to 1 ounce of cannabis for personal use by adults 21 and older and set up a structure to regulate a commercial industry in the state.

“These two pieces of legislation remove all state-level civil and criminal penalties from simple marijuana possession and create a highly regulated industry to conduct recreational marijuana sales in Delaware,” Carney said Friday in a press release. “As I’ve consistently said, I believe the legalization of recreational marijuana is not a step forward. I support both medical marijuana and Delaware’s decriminalization law because no one should go to jail for possessing a personal use quantity of marijuana. And today, they do not.”

Under prohibition, possessing up to 1 ounce of cannabis is a civil penalty in Delaware, but possessing greater amounts is punishable by misdemeanor or felony charges that could lead to incarceration.

While Carney will allow the bills to become law by neither signing nor vetoing them, he made clear that his stance on adult-use cannabis has not changed.

“I came to this decision because I believe we’ve spent far too much time focused on this issue, when Delawareans face more serious and pressing concerns every day,” he said. “It’s time to move on.”

Both pieces of legislation received three-fifths majority support in the Delaware General Assembly last month, representing veto-proof backing.

Carney specifically expressed reservations for legalization based on his concerns for roadway safety, the potential impacts that expanded access may (or may not) have on children, and for Delaware’s poorest neighborhoods, where the governor said he believes legalization will have a disproportionately negative impact.

Carney did not mention the negative impacts of prohibition, including arrests disparities in certain communities targeted by the drug war. In Delaware, Black people were 4.2 times more likely to be arrested than white people between 2010 and 2018, according to the American Civil Liberties Union.

In an effort to right some of those wrongs, H.B. 2 will reserve one-third of cultivation and manufacturing licenses and half of retail licenses for social equity applicants.

Democratic Rep. Ed Osienski, who sponsored both bills, said in a statement following Carney’s announcement that his legislation will provide opportunities for small businesses to be licensed and ensures people living in areas disproportionately affected by prohibition have equal access to the forthcoming market.

Osienski said adult-use legalization has been a five-year process in Delaware.

“We know that more than 60 percent of Delawareans support the legalization of marijuana for adult recreational use, and more than two-thirds of the General Assembly agreed,” he said. “I understand the governor’s personal opposition to legalization, so I especially appreciate him listening to the thousands of residents who support this effort and allowing it to become law. I am committed to working with the administration to ensure that the effort to establish the regulatory process goes as smoothly as possible.”

H.B. 1 will officially become law April 23, and H.B. 2 will officially become law April 27—marking the days after the constitutional 10-day window Carney has to act on each bill.

With adult-use cannabis legalization, Delaware will join the likes of its bordering neighbors New Jersey and Maryland, while Pennsylvania remains a medical-only state.

“With this move, Delawareans can finally celebrate the long-awaited end of cannabis prohibition,” Toi Hutchinson, president and CEO of Marijuana Policy Project said in a statement. “We applaud Governor Carney for not standing in the way of progress. With every new state that rises to the challenge and legalizes cannabis, we are one step closer to ending cannabis prohibition nationwide.”

What House Bill 1 Will Enact

Under H.B. 1, the cannabis possession limits for adults 21 and older would be 1 ounce of dried flower, 12 grams of concentrate, or products with 750 grams or less of delta-9 THC, according to the bill. Also, “adult sharing,” meaning transferring cannabis products between persons who are 21 and older, will be allowed as long as no money, reciprocal transactions or contingencies are tied to the transfer.

Home cultivation and consuming cannabis in public will remain prohibited for all Delawareans.

What House Bill 2 Will Enact

H.B. 2 will make Delaware the 22nd state to legalize a regulated and taxed cannabis marketplace in the U.S., including license types for cultivation facilities, retailers, product manufacturers and testing laboratories.

By 15 months after the effective date of the bill, a “marijuana commissioner,” appointed by the governor, will issue 60 cultivation licenses, one-third of which will be reserved for social equity applicants in each of two tiers. The licensing tiers will be defined by more or less than 2,500 square feet for indoor facilities or 1 acre for outdoor facilities, according to the bill. But no cultivation facility can exceed 12,500 square feet indoors or 7.5 acres outdoors.

By 16 months after the effective date, the commissioner will issue 30 manufacturing facility licenses, including 10 for social equity applicants and 10 for microbusinesses.

And, by 19 months after the effective date, the commissioner will issue 30 retail licenses, 15 of which will be reserved for social equity applicants.

At retail, a 15% excise tax will be imposed on cannabis sales, according to the bill. Each month, 7% of the total tax revenue will go toward a Justice Reinvestment Fund to administer grants, contracts, services or initiatives that focus on any of the following:

  1. Restorative justice, jail diversion, workforce development, industry specific technical assistance or mentoring services for “economically disadvantaged” persons in disproportionately impacted areas;
  2. Addressing the underlying causes of crime, reducing drug-related arrests, and reducing the prison population in Delaware; or
  3. Creating or developing technology to assist with the restoration of civil rights and expungement of criminal records.

Local municipalities will maintain control over where and when cannabis businesses can operate in their jurisdictions, or to prohibit cannabis business operations altogether through the enactment of an ordinance or ballot measure, according to the bill.

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