In Delaware, both medical and recreational cannabis use are legal. Adults who are at least 21 years old can possess up to one ounce of recreational cannabis. However, sales are unlikely to begin until well into 2024. Note that only purchases made from licensed dispensaries are legal. While Delaware residents may purchase adult-use marijuana from other neighboring states, it is illegal to transport cannabis across state lines. Cannabis use is legal indoors, in the private residence of users, but illegal in public places.
Medical marijuana is only available to persons who have completed registrations with the Office of Medical Marijuana in Delaware (OMM). The OMM only permits persons with specific health conditions to use medical cannabis. Such persons may be adults or minors. Whether adults or minors, patients must obtain medical marijuana certifications from Delaware healthcare practitioners attesting that the individual has one of the following conditions:
The following are the approved conditions for patients under the age of 18:
Note that only pediatric neurologists, pediatric oncologists, pediatric gastroenterologists, developmental pediatricians, pediatric psychiatrists, or pediatric palliative care specialists may issue medical marijuana certifications to patients under the age of 18. For adults, the approved healthcare practitioners that may issue medical marijuana attestations are Medical Doctors, Doctors of Osteopathic Medicine, Advanced Practice Registered Nurses, and Physician Assistants.
Unlike recreational cannabis, medical marijuana is sold legally in Delaware. However, such sales must be made by dispensaries licensed by the Department of Health and Social Services. Registered patients and their caregivers may not cultivate cannabis at home. Still, they can purchase up to 3 ounces of cannabis every 14 days and hold no more than 6 ounces of medical cannabis at any time. Note that Delaware medical marijuana cards are required at DHSS-licensed dispensaries. A government-issued photo ID with your age and photo may also be required. No specific laws disqualify felons from purchasing medical cannabis if they qualify. When adult-use cannabis sales begin in the state, buyers will be required to present government-issued IDs showing they are 21 or older.
Despite the legalization of medical and recreational marijuana, it remains prohibited to drive while under the influence of the drug or sell it without a license.
Although Delaware has legalized medical cannabis since 2011, the state only exceeded $1 million in revenue from its medical marijuana program in the 2021 fiscal year. Hence, while medical cannabis legalization contributes to the coffers of the state, the impact has been minimal.
However, the Delaware Office of the Auditor of Accounts (OAOA) reports that the recent legalization of recreational cannabis will provide a new revenue stream and new potential for economic growth. The report estimates that a regulated adult-use cannabis market in the state will generate more than $43 million in annual tax revenue and allow for new business formation and more jobs.
According to the OAOA estimates, fighting the war on marijuana has been costly for taxpayers nationwide, with about $3.6 billion spent annually on the battle. Still, the effort has not diminished the black market or kept marijuana from the hands of Delawarean youths. Per the OAOA report, the recreational industry in Delaware is estimated to be valued at $215 million. In addition to the tax revenue, the adult-use cannabis market in Delaware is expected to create at least 1,400 jobs over its first 5 years.
Arrests for marijuana possession have reduced in Delaware since the 2011 legalization of medical marijuana in the state. In 2011, there were 2,349 arrests for marijuana possession, but that figure rose slightly in 2015, with 2,583 arrests made statewide for marijuana possession. In 2018, arrest numbers dropped to 1,234, while the state recorded 549 arrests for marijuana possession in 2020. By 2021, the arrest number dropped slightly lower to 541.
Also, both property and violent crime rates have dropped in Delaware since 2011. In that year, the state recorded violent and property crime index rates of 5,144 and 31,163 incidents per 100,000 people, while in 2019, these figures had dropped to 422.6 and 2,252.2 incidents per 100,000 residents, respectively.
The 1937 Marijuana Tax Act made marijuana illegal nationwide, even though some form of medical marijuana use was still permitted. However, in 1970, when President Richard Nixon signed the Controlled Substances Act into law, cannabis was classified as a Schedule I drug, considered to have a high potential for abuse, and no accepted medical use. Hence, cannabis use was prohibited for any purpose.
In 2011, Senator Margaret Rose Henry sponsored Senate Bill 17, later signed into law in 2011 as the Delaware Medical Marijuana Act. SB 17 made medical cannabis available to patients with specific medical conditions, including PTSD, cancer, terminal illness, anxiety, AIDS, and agitation of Alzheimer’s disease.
In 2015, Representative Helene Keeley and Senators Margaret Henry and Bryan Townsend sponsored HB 39 to decriminalize the possession or private consumption of a personal use quantity of marijuana. Under HB 39, persons with 1 ounce or less of marijuana may be assessed a civil penalty that will not be included in their criminal records and must forfeit the marijuana in their possession. The bill was signed into law in 2015.
Senator Darius Brown introduced SB 37 in April 2019 to amend the Delaware criminal code to allow Delawareans with one cannabis misdemeanor or felony to have their criminal records expunged after a specific number of years. For persons with one misdemeanor, 5 years, while persons with one felony must wait 7 years to clear the offense off their criminal records.
Representative Helene Keeley introduced HB 110 in March 2017 to legalize recreational cannabis in the state. The bill, co-sponsored by Senators Margaret Henry and Bryan Townsend and Representatives Paul Baumbach and John Kowalko, failed in the statehouse in 2019. Although it was reintroduced a year later and cleared for consideration by the House, it failed to progress.
House Bill 1 and House Bill 2 were introduced to the House by Representative Ed. Osienski in January of 2023—the bills aimed to legalize recreational cannabis and establish a tax system for cannabis sales in the state. The House approved both bills in March 2023. With Governor Carney refusing to sign or veto the bills, they became laws in the state in April 2023.