Delaware Recreational Marijuana Laws & Licensing Information
Recreational Marijuana
In April 2023, Delaware became the 22nd state to legalize cannabis after Governor John Carney allowed House Bill 1 (HB 1) and House Bill 2 (HB 2) to become law without his signature. HB 1 legalizes possession of up to one ounce of cannabis for adults 21 and over. HB 2 will regulate and tax cannabis sales for adults in Delaware.
HB 2, which created the Delaware Marijuana Control Act (the “Act”), specifies that marijuana must be regulated and taxed in a manner similar to alcohol, including, but not limited to, the following:
- Individuals will have to show proof of age before purchasing marijuana.
- Selling distributing, or transferring marijuana to individuals under the age of 21 remains illegal.
- Driving under the influence of marijuana remains illegal.
- Legitimate, taxpaying businesspeople and not criminal actors are to conduct sales of marijuana.
- Marijuana sold in the state will be tested, labeled, and subject to additional regulations to ensure that consumers are informed and protected.
HB 2 further provides that “marijuana establishments” are entities licensed as a marijuana cultivation facility, a marijuana testing facility, a marijuana product manufacturing facility, or a retail marijuana store.
The following adult-use license types will be available in Delaware:
- Conditional License – The Commissioner may grant a social equity or microbusiness applicant a conditional license, and any applicant who receives a conditional license shall have 180 days from the date of the granting of the conditional license to identify a physical location for the location of the licensed premises. If the applicant is unable to find a suitable physical address approved by the Commissioner within 180 days of issuance of the conditional license, the Commissioner may extend the period for finding a physical address for another 180 days if the conditional licensee demonstrates concrete attempts to secure a location and a hardship to securing the location. If the Commissioner denies the extension of the conditional license or the licensee is unable to find a physical address approved by the Commissioner within the additional 180 days, the Commissioner shall rescind the conditional license.
- Marijuana Cultivation Facility or Cultivation Facility – An entity licensed to cultivate, prepare, and package marijuana and sell marijuana to retail marijuana stores, to marijuana product manufacturing facilities, and to other marijuana cultivation facilities, but not to consumers. A marijuana cultivation facility may not produce marijuana concentrates, tinctures, extracts, or other marijuana products. This license is valid for 2 years, and a marijuana cultivation facility licensee shall pay the Commissioner biennially for a marijuana cultivation facility license, in an amount that is determined based upon the cannabis plant grow canopy area. The renewal fee is no less than $5,000 and no more than $10,000.
- Marijuana Product Manufacturing Facility – An entity licensed to purchase marijuana; manufacture, prepare, and package marijuana products; and sell marijuana and marijuana products to other marijuana product manufacturing facilities and retail marijuana stores, but not to consumers. This license is valid for 2 years, and a marijuana product manufacturing facility licensee shall pay the Commissioner $10,000 biennially for the marijuana product manufacturing facility license.
- Marijuana Testing Facility – An entity licensed to test marijuana for potency and contaminants. This license is valid for 2 years, and a marijuana testing facility licensee shall pay the Commissioner $10,000 biennially for the marijuana testing facility license.
- Microbusiness License – A microbusiness applicant is an applicant for a marijuana cultivation facility license or a marijuana product manufacturing license who meets certain criteria, as laid out in the Act. There is a discounted application fee in the amount of $3,000. A microbusiness license is valid for 2 years, and a microbusiness licensee shall pay the Commissioner biennially for the microbusiness license at a discounted rate of 40% of the applicable open license.
- Open License – A license issued pursuant to the Act that is not a social equity license or a microbusiness license, which includes all of the following: retail marijuana store license; marijuana testing facility license; marijuana cultivation facility license; and marijuana product manufacturing license.
- Retail Marijuana Store – An entity licensed to purchase marijuana from marijuana cultivation facilities; to purchase marijuana and marijuana products from marijuana product manufacturing facilities; and to sell marijuana and marijuana products to consumers. This license is valid for 2 years, and a retail marijuana store licensee shall pay the Commissioner $10,000 biennially for the retail marijuana store license.
- Social Equity License – A social equity applicant is a Delaware resident who meets certain criteria, as laid out in the Act. There is a discounted application fee in the amount of $1,000. A social equity license is valid for 2 years, and a social equity licensee shall pay the Commissioner biennially for the social equity license at a discounted rate of 40% of the applicable open license.
Applications for licensure will be available in May 2024. Pursuant to the Act, the Commissioner shall issue a set number of licenses for each license type. Beginning 13 months after the effective date of the Act, the Commissioner shall begin accepting applications for all licenses, including open, social equity, and microbusiness licenses; and beginning 14 months after the effective date of the Act, the Commissioner shall begin issuing licenses. Beginning 19 months after the effective date of the Act, the Commissioner shall issue the following number of retail store licenses provided a sufficient number of qualified applicants exist: (a) 15 open licenses and (b) 15 social equity licenses. This means the state’s first 30 retail licenses must be issued before the end of 2024. At any time 2 years after the effective date of the Act, the Commissioner may accept applications for any type of license and issue licenses in excess of the numbers identified in the law for either of the following reasons: (1) the Commissioner determines that additional stores or facilities are needed; or (2) the number of licenses for a particular type of license is less than the number permitted for that type of license in the Act.
Hemp
In Delaware, the cultivation, processing, and sale of hemp are regulated under the Delaware Department of Agriculture (DDA). This regulatory framework aligns with federal guidelines established by the USDA to ensure compliance with the 2018 Farm Bill, which legalized hemp production nationwide.
The following is the licensing process for the cultivation and sale of hemp in Delaware:
- Application and Registration—To cultivate or process hemp in Delaware, interested parties must apply for a license through the Delaware Department of Agriculture. The application process involves providing detailed information about the business, the proposed cultivation or processing sites, and compliance plans for state and federal regulations.
- Background Checks – Applicants must undergo a criminal background check as part of the licensing process. This is to ensure that the applicant has no felony convictions related to controlled substances within the last ten years, in line with federal requirements.
- Fees – The cost of obtaining a hemp license in Delaware varies depending on the type and scope of the activities planned. The application fee itself is relatively modest, but additional costs may arise from compliance with regulatory requirements such as site security, product testing, and reporting.
Operational Requirements:
- Reporting and Inspections – License holders are required to report their crop data and adhere to inspection protocols set by the DDA. This includes regular reporting of crop planting, harvesting, and disposal activities.
- Restrictions –Delaware imposes specific restrictions on the location of hemp cultivation sites, particularly concerning their proximity to public schools and certain public areas. Additionally, to comply with both state and federal laws, all hemp produced must contain less than 0.3% THC.
- Product Testing – Hemp products must be tested for THC concentration to ensure they do not exceed the legal limit. The DDA provides guidelines on approved testing facilities and procedures.
Adhering to these guidelines and maintaining compliance with state and federal regulations is crucial for businesses and individuals interested in the hemp industry in Delaware. The Delaware Department of Agriculture’s Hemp Program webpage provides detailed information on the application process, regulatory requirements, and ongoing compliance. This resource is essential for navigating the legal landscape and ensuring successful operation within the hemp industry in Delaware.
Psychedelics
In Delaware, the regulatory landscape for psychedelics is governed by state and federal laws which classify most psychedelics as controlled substances. Here’s a detailed look at the state scheduling of psychedelics, regulations concerning ketamine, the application of the Right to Try Act, and the status of religious exemptions for psychedelic use.
- State Scheduling of Psychedelics – Psychedelics such as LSD, psilocybin, and MDMA are classified under Schedule I in Delaware, following the federal classification. This categorization indicates that these substances are seen as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. This classification restricts their legal use to non-existent within the state, barring any approved research activities.
- Ketamine Laws and Telehealth – Ketamine, which is not classified as a Schedule I drug and has legitimate medical uses primarily as an anesthetic, is also being used in treatment-resistant depression. Under Delaware law, ketamine can be prescribed and administered for its FDA-approved purposes, which now include certain psychiatric conditions. Delaware’s telehealth laws permit the prescription of controlled substances, including ketamine, under specific conditions that ensure a legitimate patient-provider relationship is established. Providers must comply with both state telehealth regulations and broader DEA regulations concerning the prescription of controlled substances.
- State Right to Try – Delaware adheres to the federal “Right to Try” law, which allows terminally ill patients to access investigational drugs that have passed Phase I of the FDA approval process but have not been fully approved by the FDA. This legislation potentially enables access to experimental treatments, including psychedelic therapies under clinical trials, providing a pathway for patients who have exhausted conventional treatment options.
- State Religious Exemptions – Currently, Delaware does not provide specific religious exemptions for the use of psychedelics. Unlike some other states that have begun to address this issue through legislation or court rulings, Delaware maintains a strict stance in line with federal regulations that do not recognize religious use as a permissible exemption for Schedule I controlled substances. This lack of exemption places constraints on the religious or spiritual use of psychedelics within the state.
Delaware’s approach to psychedelics remains conservative, aligning closely with federal policies that restrict the use of these substances. As the national conversation around the therapeutic potential of psychedelics continues to evolve, there may be future legislative changes that could impact how these substances are regulated within the state.
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