Delaware House Democrats announced April 14 the official delivery of two adult-use cannabis bills to Gov. John Carney’s desk that the General Assembly approved more than two weeks ago.
House Bill 1, which aims to legalize the possession of up to 1 ounce of cannabis for personal use by adults 21 and older, was sent to the governor April 11. And House Bill 2, which would set up a structure to regulate commercial cultivation and retail, was delivered April 14.
With those complementary bills being presented to the governor, a 10-day constitutional window for Carney to act is officially underway. The Delaware Constitution provides that after 10 days (excluding Sundays) of being presented to the governor, any bill left unaddressed becomes law. That means Carney has until April 22 and April 26 to sign or veto the adult-use bills, or take no action at all.
Friday’s announcement from House Democrats comes more than two weeks since the General Assembly passed the complementary bills with three-fifths majorities in each legislative chamber.
This transparency from elected representatives April 14 follows a period of secrecy about the democratic process earlier this week, when both Carney’s communications director, Emily Hershman, and the bills’ primary sponsor, Democratic Rep. Ed Osienski, declined to comment on when, or if, H.B. 1 and H.B. 2 were officially presented to the governor’s desk—a key detail pertaining to the start of the 10-day constitutional timeframe.
Osienski said in the April 14 House press release that the Delaware Marijuana Control Act, which is comprised of H.B. 1 and H.B. 2, has been a long, multiyear journey.
“We have had countless hearings, debates, stakeholder engagement and deliberations,” he said. “We have incorporated numerous suggestions and changes from interested parties—including the governor’s office—throughout this process to arrive at what I believe is the best possible plan for legalizing and regulating adult recreational marijuana. I am hopeful that the governor will take all of this into account as he considers these bills and that he will acknowledge the desires of an overwhelming majority of Delaware residents.”
Carney vetoed a former version of H.B. 1 last year—to legalize simple possession—which was followed by the 2022 House’s unsuccessful override attempt. The governor again expressed his reluctance for reform last month, when the General Assembly was finalizing language for this year’s adult-use legislation. The head executive cited concerns over roadway safety and unintended consequences, CBS affiliate WBOC reported.
Carney was the first Democratic governor in the U.S. to veto a cannabis legalization bill last year, according to advocacy group Marijuana Policy Project (MPP). MPP Senior Policy Analyst Olivia Naugle called the 2022 veto a “true injustice” at the time, as more than 70% of Delawareans support legalizing the use of cannabis, including more than 85% of Democrats, according to Civiqs polling.
Despite last year’s House having a veto-proof majority when it sent a possession bill to Carney’s desk in 2022, the House lost six votes following the governor’s veto—resulting in a 20-20 roll call that was unable to override the governor.
Could This Year Be Different?
Overriding a governor’s veto in Delaware requires a three-fifths vote of the total membership of each chamber in the bicameral Legislature, or else a veto prevents a bill from becoming law. That means the Delaware House needs 25 votes to override a veto. That chamber had 28 votes in support of H.B. 1 last month and 27 votes for H.B. 2.
And in the Senate, a three-fifths majority would be 13 votes. That chamber had 16 votes for H.B. 1 last month and 15 votes for H.B. 2.
History suggests that it’s not so easy for legislators to have the final say when a Delaware governor issues a veto. The Delaware General Assembly has not overridden a veto since 1977, according to the Delaware News Journal. The last attempt prior to last year’s 20-20 House vote came in 1990.
What House Bill 1 Accomplishes
Should H.B. 1 become law, 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.
This legislation received a 68.3% majority in the Delaware House and a 76.2% majority in the Senate last month.
Under Delaware’s prohibition, possessing more than 1 ounce of nonmedical cannabis is a misdemeanor punishable by up to three months in jail and a $575 fine, according to advocacy group NORML. Possessing more than 175 grams, or roughly 6 ounces, is a felony offense.
What House Bill 2 Accomplishes
H.B. 2 would 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, would issue 60 cultivation licenses, one-third of which would be reserved for social equity applicants in each of two tiers. The licensing tiers would 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 could exceed 12,500 square feet indoors or 7.5 acres outdoors.
By 16 months after the effective date, the commissioner would 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 would issue 30 retail licenses, 15 of which would be reserved for social equity applicants.
At retail, a 15% excise tax would be imposed on cannabis sales, according to the bill. Each month, 7% of the total tax revenue would go toward a Justice Reinvestment Fund to administer grants, contracts, services or initiatives that focus on any of the following:
- Restorative justice, jail diversion, workforce development, industry specific technical assistance or mentoring services for “economically disadvantaged” persons in disproportionately impacted areas;
- Addressing the underlying causes of crime, reducing drug-related arrests, and reducing the prison population in Delaware; or
- Creating or developing technology to assist with the restoration of civil rights and expungement of criminal records.
Local municipalities would maintain control over where and when cannabis businesses could operate in their jurisdictions, or to prohibit cannabis business operations altogether through the enactment of an ordinance or ballot measure, according to the bill.
This legislation received 65.9% majority in the Delaware House and 71.4% majority in the Senate last month.
With adult-use cannabis legalization, Delaware would join the likes of its bordering neighbors New Jersey and Maryland, while Pennsylvania remains a medical-only state.
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