Would legalizing ‘rec’ marijuana mean an untapped market for jobs and revenue, or a headache for Delaware and its citizens?

Sixty-one percent of Delawareans support legalization of cannabis; 18.5 percent already use it; medical marijuana has been legal for years in the state, and possessing a small amount of recreational marijuana was decriminalized in 2015.

Now, as Out & About goes to press, Delaware may be poised to take what seems to be the next logical step:
legalizing recreational marijuana.

On March 18, State Rep. Ed Osienski (D-Brookside) and State Sen. Trey Paradee (D-Dover) formally introduced House Bill 150, which would allow adults over the age of 21 to legally possess and consume under one ounce of marijuana for personal use. It also would allow the cultivation and sale of marijuana and provide small business license opportunities. Six days later, the bill made it through the House Health and Human Development Committee by a vote of 10-5, with all nine Democrats and one Republican voting for it.

But the bill must traverse a long path to becoming a law. Since it includes a tax provision, it must go through the Appropriations Committee, where public comment will be allowed. If voted favorably out of Appropriations, it goes to the full House for a vote. If it passes the House, the process is the same in the Senate.

In March, Osienski predicted that the bill would be heard on the House floor sometime after the Easter break, “possibly at the end of April or early May.”

If the legislation is signed into law, Delaware would join 16 other states, including neighboring New Jersey, in legalizing “rec” marijuana. Virginia became the latest to pass an adult-use marijuana legalization law, although sales will not start until 2024. Maryland is also considering legalization. The narcotic remains illegal on a federal level, but in March, Democratic Senators Cory Booker, Chuck Schumer and Ron Wyden proposed legislation to end federal cannabis prohibition.

$43 Million in Taxes?

Whether it’s called weed, pot, Mary Jane, grass, herb, ganja, 420, or any of dozens of other sobriquets, marijuana has always attracted passionate supporters and equally passionate opponents in Delaware. Both camps are looking at the same picture, but one sees the young woman while the other sees the old lady, one the duck, the other the rabbit. And both back their arguments with dueling research. In the middle are the General Assembly and a reticent governor.

Advocates have been pursuing legalization in the First State for several years. Former State Sen. Margaret Rose Henry and former Rep. Helene Keeley first introduced a legalization bill in 2017. Osienski then took up the cause, introducing a bill in the last session, but it died in committee.

Proponents got a big boost in late January, when Delaware Auditor Kathy McGuiness authored a report optimistically titled “Millions in Revenue Anticipated from Legalizing Marijuana in Delaware.” In it, she claimed that Delaware could realize more than $43 million in annual tax revenue from the regulation and taxation of legal marijuana. It further stated that legalization would create new business and more than 1,000 jobs over five years, leading to a $215 million industry in the state.

McGuiness also stated: “With neighboring states either legalizing it or considering doing so, taking action now is the only way to prevent Delaware from being at a competitive disadvantage in the future. The First State cannot and should not be the last state to approve legalization in the region.”

While McGuiness assumed an excise tax of 20% on sales, H.B. 150 contains a 15% tax, meaning the potential tax take would drop by about $10 million, using McGuiness’ calculations.

The legislation would establish an Office of Marijuana Control Commissioner to regulate the industry and would initially authorize 30 retail store licenses, 30 manufacturing licenses, 60 cultivation licenses and five testing facility licenses.

Osienski and Paradee claim they don’t intend to make legal marijuana a revenue engine, saying one of their major aims is to shut down the illegal street market. Toward that end, their bill calls for Social Equity and Microbusiness applicant pools. Social equity applicants are defined as those who either live in an area disproportionately affected by marijuana laws, have been convicted of a marijuana-related offense, or who have a parent convicted of a marijuana-related offense. They would be entitled to technical assistance, reduced fees, loans and scoring preferences in the awarding of licenses.

‘Safer than Alcohol’

Under the bill, using cannabis in public or in a vehicle would be illegal, and employers can prohibit its use. It does not allow home-grown marijuana, and individual cities and

A January report from State Auditor Kathy McGuiness predicted that legalizing marijuana would created 1,000 jobs over five years.

counties can opt out of allowing cannabis facilities. It would be regulated like alcohol under the Division of Alcohol and Tobacco Enforcement. 

Among the most vocal backers of legalization is Delaware Cannabis Advocacy Network (“Delaware Can” for short) and its executive director, Zoë Patchell. Says Patchell: “Both in my personal life as well as in my career as a paralegal, I have seen the devastating effects that the senseless policy of cannabis prohibition has had on otherwise law-abiding citizens, due to the criminalization of a plant that research shows is safer than alcohol. Prohibition has served as a gateway to the criminal justice system, with collateral consequences that last a lifetime for many.”

Speaking of “gateway,” Patchell disputes the oft-repeated claim that marijuana leads users to more serious drugs. “First of all,” she says, “lifetime consumption of cannabis is 46.2%, meaning half of all adults try cannabis at one time or another during their lifetime. If cannabis was a ‘gateway,’ then more people would be addicted to heroin or cocaine or whatever cannabis is alleged to be a gateway to. Also, both research and anecdotal evidence show that cannabis is actually an exit strategy and acts as harm reduction for many people who find themselves addicted to pharmaceuticals, hard drugs and even alcohol.”

She cites studies indicating cannabis legalization can make a significant dent in the nationwide opioid crisis. “Legalization is associated with a reduction in opiate use, abuse, and overdose, as well as a reversal in what was an upward trend in opiate overdose deaths,” she says.

AAA Opposition

Perhaps the most prominent voice opposing legalization of rec marijuana in Delaware or any other state is the American Automobile Association. Ken Grant, manager of Public and Government Affairs for AAA Mid-Atlantic, says AAA’s opposition is based on the impact on traffic safety.

Ken Grant of AAA Mid-Atlantic says legalizing
cannabis in other states has led to more crashes
and insurance claims.

“According to research by the AAA Foundation for Traffic Safety,” Grant says, “following legalization in Washington state, fatal crashes involving drivers who recently used cannabis doubled. Crash rates and insurance claims also increased in Colorado, Nevada, and Oregon after recreational legalization passed.”

Further, he says, “A Colorado study released last September showed that since the state legalized recreational marijuana in 2013, traffic deaths in which drivers tested positive for marijuana increased 135%, while total Colorado traffic deaths increased by only 24%. Traffic deaths involving drivers who tested positive for marijuana more than doubled from 55 in 2013 to 129 people killed in 2019. From 2013 to 2019, the percentage of all Colorado traffic deaths that were marijuana-related increased from 15% to 25%.”

If H.B.150 is passed, says Grant, “Delaware is not prepared to manage the potential highway safety consequences, lacks a sufficient number of Drug Recognition Experts (DREs), and has yet to fully commit to a comprehensive public education campaign around the traffic safety dangers.”

A DRE is a police officer who has received advanced training in recognizing drug-impaired drivers. The state coordinator of the DRE program, Lt. Andrew Rubin of the Newark Police Department, confirms Grant’s assertion. Rubin says there are currently 49 DREs statewide. If recreational marijuana is legalized, he says, “we have estimated in the past that we will need 75 DREs, maybe higher.” 

Rubin says drug use is increasing dramatically in the state, and cites DUI arrests, which total about 4,000 to 4,200 annually. In 2015, 623 of those were tested for drugs by the Delaware Division of Forensic Science. In 2020, that figure was 856 a jump of about 37% in the five-year period.

Drug Test Challenges

Rubin says pot is number one on the DRE hit parade. “Of our DRE evaluations, more than 50% are cannabis-related,” he says.

He points out that the actual number is likely higher because, in Delaware, as in many states, if a driver exceeds the DUI threshold of  0.08 for alcohol on a breathalyzer,
there is no further testing for drugs unless the driver is involved in a fatal accident.

Current breathalyzers cannot detect cannabis. Samples of  urine, blood, saliva and even hair follicles can reveal cannabis. All of those tests, however, have drawbacks. Marijuana does not dissipate from a person’s system as quickly as alcohol, and is sometimes detectable 30 days after use, so the tests often can’t determine how long ago a driver used marijuana or how much marijuana he used.

Patchell, who at the drop of an email can unleash an arsenal of statistics and studies supporting legalization, claims opponents “often repeat exaggerated, misleading or cherry-picked arguments, while failing to take into account the totality of the situation.”

She counters with a peer-reviewed study, published by the National Institute of Health and the American Journal of Public Health, which found that “three years after recreational marijuana legalization, changes in motor vehicle crash fatality rates for Washington and Colorado were not statistically different from those in similar states without recreational marijuana legalization.”

She also cites what she calls “the most in-depth study on cannabis impaired driving.” Conducted in 2015 by the National Highway Traffic Safety Administration, it concluded that, while alcohol use dramatically increases accident risk, drivers testing positive for cannabis were no more likely to get into an accident
than sober drivers.

Careful Cannabis Users?

Patchell posits that this may be because marijuana users are more careful than drunks. “Studies show that while drunk drivers tend to underestimate their degree of impairment, marijuana users actually tend to overestimate their impairment,” she says, and that results in their employing what she calls “compensatory strategies.”

Another opponent of legalized recreational marijuana is Scott Spencer, of Wilmington, a transit safety consultant and community activist who lost Democratic primary contests for

CannabisTaskForce1-MCleryDelaware Cannabis Advocacy Network Executive Director Zoe Patchell speaks during a press conference as travel writer Rick Steves looks on at Leg Hall on Wednesday. Delaware State News/Marc Clery

Congress in 2010 and mayor of Wimington in 2012.

Spencer especially targets McGuiness’ report, calling it “seriously flawed,” particularly in terms of cost.

“The whole report is focused on revenue,” he says. “Not a dime of cost is reflected in it.”

Legalizing marijuana, he argues, will create “another legal substance that causes driver impairment. That should be figured into the cost, especially in terms of hospitalization and law enforcement” such as the need for more DREs.

Spencer contends that H.B. 150 will lead to “a whole series of unintended consequences,” including “an expanded black market” and regression in the gains made by the campaign against “big tobacco,” leading to exposing children to “second-hand pot.”

“Delawareans are going to pay for legalizing pot with their lives,” he says.

Spencer also pooh-poohs the idea that failing to legalize marijuana will put the state at an economic disadvantage in the region. “Give it the advantage of not legalizing, and attract businesses that don’t have to worry about their employees being on pot,” he says.

Assuming the bill clears all the legislative hurdles which is not a sure bet it will then land on Gov. John Carney’s desk. During his successful 2020 campaign for re-election, Carney called legalized marijuana “a bad idea,” but has not specifically said he would veto it.

The governor’s position on the issue hasn’t changed, according to his communications director,
Jonathan Starkey.

“He supported decriminalization and an expansion of Delaware’s medical marijuana program,” Starkey told O&A, “but he still has concerns about legalizing recreational marijuana.”

If the bill reaches Carney and that’s a big if he has 10 days to either sign it or veto it. If he does neither, the bill automatically becomes law. (This actually has happened before; then-Gov. Tom Carper never signed the law legalizing slots gaming in Delaware, and it became law without his signature in 1995.) If it chooses to, the General Assembly can override a veto with a three-fifths majority.

Stay tuned.

Medical Marijuana: A Growing Market

The medical marijuana program in Delaware began six years ago, and there are six “compassion centers” licensed to sell marijuana to patients holding a written certification from a physician and an identification card. Patients can possess no more than 6 ounces of medical marijuana and a compassion center cannot dispense more than 3 ounces of marijuana to a patient over a 14-day period.

Compassion centers educate patients about marijuana and help them manage their treatment programs. Photo courtesy First State Compassion

The number of registered patients has been steadily growing since the program’s inception, despite the fact that medical cannabis is not covered by insurance. In 2020, the state Office of Medical Marijuana issued more 16,497 registration cards, which was a 37% increase over 2019.

The increase is understandable. Cannabis has proven effective in treating many ailments, especially those involving severe, debilitating pain, and it can significantly decrease anxiety and provide a sense of overall well-being. Conditions that respond to cannabis treatment include PTSD, HIV, AIDS, ALS (Lou Gehrig’s Disease), chronic migraines, glaucoma, and many others.

Its efficacy extends to reducing opioid addiction. “Some of our patients became addicted to opioids, some for 10-to-15 years, and they have used cannabis to come off those,” says Haley Schell, regional director of Retail Operations for First State Compassion (FSC). “Cannabis has a way of controlling withdrawal symptoms.”

Led by CEO and retired State Trooper Mark Lally, FSC became the first licensed medical marijuana dispensary in Delaware in June of 2015. It also operates Delaware’s first and largest cannabis growing facility. With locations in Wilmington and Lewes, FSC serves approximately 9,000 patients. Besides inhalation products, it offers ingestibles, topicals, oils and more.

“We believe patients should be champions of their own treatment program,” says Senior Communications Manager Lauren Foraker. “Our role is as an information partner and guide to helping them manage their pain and have a much better quality of life.”

“A lot of patients are elderly,” says Louise Lewis, FSC’s manager of Patient Engagement and Education, “and they have not had experience with and don’t understand THC (tetrahydrocannabinol, the chemical responsible for most of marijuana’s psychological effects), and they’re really nervous. By time they leave, they’re confident and are back in charge of their life.

“That is our mission. Our team takes the time to educate, to make patients feel welcome and comfortable.”

FSC also offer programs to help with costs, including discounts for veterans, first responders, and those with a terminal illness.

“The amount of feedback is amazing,” Lewis says. “We have patients who were using walkers who no longer need to, others who are now sleeping when they hadn’t slept in months. I’ve been in the natural health industry for 30 years, working with supplements, diets, and natural food nutrition, but what I’ve seen this amazing medicine do is beyond belief.”

Foraker and Lewis are not only employees but patients of FSC. Foraker, previously a non-cannabis user, had been hospitalized with extreme neck and head pain as well as body tremors after sustaining an injury from a chiropractic adjustment. Nothing — including opioids — helped until her sister, who works in health care, alerted her to medical marijuana. Foraker tried a tincture treatment at FSC, and it provided almost immediate relief.

Lewis suffered from chronic back pain as a result of a work-related injury. “I never wanted to take pain meds, so thought I would try medical marijuana,” she says. “I had used it recreationally, but never thought of it as medical.” After treatment at FSC, she says she “very rarely” experiences any of the pain she used to have.

The medical marijuana community has expressed concerns about H.B. 150, which would legalize recreational marijuana. At a hearing in March, a representative of the industry said that the bill will have a negative impact on their business and that state compassion centers should be grandfathered into the recreational market, as they are in other states where rec marijuana is legal.

Rep. Edward Osienski, D-Brookside, the bill’s primary sponsor, said the industry has nothing to worry about. “This bill really doesn’t affect the medical marijuana industry,” he said. “I was kind of surprised by their concerns.”

Lally issued this statement to Out & About: “We support the mission of the Delaware Cannabis Advocacy Network and applaud Zoé Patchell’s hard work and leadership. We’re both involved in the cannabis industry, but First State Compassion’s central objective has been focused on creating and establishing the foundation for medical marijuana in the state.”

For further information on medical marijuana in Delaware, go to DHSS.Delaware.Gov or call 302-744-4749.

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