In the Delaware General Assembly, adult-use cannabis legislation garnered support from a three-fifths majority on March 28. However, Democratic Governor John Carney’s stance on the matter remains undisclosed. As the governor is term-limited and ineligible for re-election in November 2024, his response to House Bill 1 and House Bill 2 has yet to be made public. These bills, which complement each other, propose the legalization of personal cannabis possession of up to 1 ounce for adults aged 21 and above. Additionally, they aim to establish a regulatory framework for commercial cultivation and retail sales in Delaware.
Despite inquiries from Cannabis Business Times on April 11, Governor Carney’s Communications Director, Emily Hershman, stated that there were no updates regarding the bills. When asked if the governor intends to allow the legislation to become law without his signature, Hershman did not immediately respond and did not return subsequent calls.
According to the Delaware Constitution, the governor has ten days (excluding Sundays) to take action on legislation—either signing or vetoing a bill. If a bill remains unaddressed, it automatically becomes law. It has now been 12 days (excluding Sundays) since H.B. 1 and H.B. 2 were passed by the General Assembly. However, the exact starting point of the ten-day period remains unclear. The timeline regarding when the governor received the bills and whether they spent time in a clerk’s office has not been clarified by the governor’s office or the bills’ sponsor, Democratic Representative Ed Osienski.
Osienski mentioned that he would issue a press release on April 14 regarding the status of H.B. 1 and H.B. 2 but did not provide further details at the time.
H.B. 1 was passed by the House with a 68.3% majority on March 7, while H.B. 2 received a 65.9% majority on March 9. Both bills were approved by the Senate with 76.2% and 71.4% majorities on March 28, subsequently reaching Governor Carney’s desk. Currently, both bills are listed as “ready for governor for action” on the Delaware General Assembly’s website.
In the previous year, Governor Carney vetoed an earlier version of H.B. 1 that aimed to legalize simple possession. He expressed his belief that promoting or expanding cannabis use among individuals aged 21 and older was not in the state’s best interest. Furthermore, he dismissed the potential benefits of a licensed and regulated adult-use cannabis program in Delaware, a state with a population of approximately one million.
Governor Carney’s recent silence on the cannabis legislation coincides with more than 2,700 cannabis possession arrests in Delaware between 2018 and 2021, as reported by NORML.
During the finalization of H.B. 1 and H.B. 2’s language, Governor Carney cited concerns about roadway safety, particularly the absence of a sobriety test for impaired drivers, as well as potential unintended consequences. These reasons contributed to his reluctance to sign adult-use cannabis legislation, as reported by CBS affiliate WBOC.
At present, 72% of registered Delaware voters support the legalization of cannabis use, including 88% of Democrats, according to polling conducted by Civiqs.
Both bills are sponsored by Osienski, who previously led an unsuccessful reform effort last year. On March 28, he expressed satisfaction with the Senate’s passage of both bills on social media, mentioning the ups and downs experienced during the journey. He hopes that Governor Carney will heed the will of the people of Delaware and either sign the bills into law or allow them to become law.
If H.B. 1 is enacted, adults aged 21 and above would be allowed to possess up to 1 ounce of dried cannabis flower, 12 grams of concentrate, or products containing 750 grams or less of delta-9 THC, as outlined in the bill. The bill also permits “adult sharing,” which refers to the transfer of cannabis products between individuals who are 21 and older, as long as no monetary transactions or contingencies are involved.
However, home cultivation and public consumption of cannabis would remain prohibited for all residents of Delaware.
On the other hand, H.B. 2 aims to make Delaware the 22nd state in the United States to establish a regulated and taxed cannabis marketplace. It includes provisions for various license types, such as cultivation facilities, retailers, product manufacturers, and testing laboratories.
Within 15 months of the bill’s effective date, a “marijuana commissioner” appointed by the governor would issue 60 cultivation licenses, with one-third of them reserved for social equity applicants in each of two defined tiers. The size limits for indoor and outdoor cultivation facilities are set at 2,500 square feet and 1 acre, respectively, with a maximum limit of 12,500 square feet for indoor facilities and 7.5 acres for outdoor facilities.
Within 16 months of the effective date, the commissioner would issue 30 manufacturing facility licenses, including 10 for social equity applicants and 10 for microbusinesses.
By 19 months after the effective date, the commissioner would issue 30 retail licenses, with 15 reserved for social equity applicants.
The bill also imposes a 15% excise tax on cannabis sales at retail. Each month, 7% of the total tax revenue would be allocated to a Justice Reinvestment Fund, which would administer grants, contracts, services, or initiatives focusing on areas such as restorative justice, jail diversion, workforce development, industry-specific technical assistance, mentoring services for economically disadvantaged individuals in disproportionately impacted areas, addressing the root causes of crime, reducing drug-related arrests, reducing the prison population, or developing technology to assist with the restoration of civil rights and expungement of criminal records.
Local municipalities would retain control over the regulation of cannabis businesses within their jurisdictions, including the ability to enact ordinances or ballot measures to either allow or prohibit cannabis business operations.
Ultimately, the fate of these regulations and the entire content of H.B. 2 depend on Governor Carney’s decision to sign or not to act on the bills using his executive authority.
Currently, under existing law, possession of more than 1 ounce of nonmedical cannabis is considered a misdemeanor punishable by up to three months in jail and a fine of $575. Possessing more than 175 grams, roughly equivalent to 6 ounces, is classified as a felony offense.
