Delaware Cannabis Laws

Is Cannabis Legal In Delaware?
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Delaware Law: 

StateRecreationalMedical MarijuanaCBD
DelawareNo YesYes

Federal Law:

Recreational Medical MarijuanaCBD

Is recreational cannabis legal in Delaware?

No. While recreational use remains illegal, small possession amounts of 1 oz or less have been decriminalized. The decriminalization bill took effect in 2015 but was passed along party lines without any support from Republican members. The outlook for full legalization in the state is daunting. 

Recently, Delaware State Auditor McGuiness released a report showing that the state could raise to $43 million per year in new tax revenue with the legalization and regulation of recreational marijuana for adults. Other pro-cannabis legislators agree that legalization will bring an economic boost and minimize the current black market. 

Is Medical Marijuana legal in Delaware?

Yes. 2011 *Delaware Medical Marijuana Act made MMJ legal for patients with a prescription from their physician. The original law stated patients must be 18 years or older to receive MMJ treatment. As of 2015, minors with certain conditions can use CBD based oils that contain at most 7% THC. 

Are CBD products legal in Delaware? 

Yes. Since the passage of the Hemp Farming Act of 2018, hemp-derived CBD products are legal under federal law in the United States; as long as they contain at most 0.3% THC

Any and all CBD in food and drink is still federally illegal.

Is medical marijuana delivery legal in Delaware? 

Yes. In response to the coronavirus pandemic, in 2020, the state allowed medical providers to start delivering cannabis treatments to their patients. 

Delaware’s Cannabis Timeline:

1937: The Marihuana (archaic spelling of Marijuana) Tax Act was enacted banning cannabis at the federal level. Medical Marijuana use was still permitted.

1951: The Boggs Act, Sponsored by Hale Boggs and signed into law under President Harry S. Truman, This act set mandatory sentencing and increased punishment for cannabis possession. 

1969: The Marihuana Tax Act is deemed unconstitutional in the landmark Leary v. United States. Timothy Leary, a professor, and activist was arrested for the possession of marijuana in violation of the 1937 Marihuana Tax Act. Leary then challenged the act on the ground that the act required self-incrimination, which violated his Fifth Amendment rights. (The self-incrimination clause provides various protections against self-incrimination, including the right of an individual to not serve as a witness in a criminal case in which they are the defendant, better known as “Pleading the Fifth”.) The unanimous opinion of the court was penned by Justice John Marshall Harlan II and declared the Marihuana Tax Act unconstitutional. Therefore, Leary’s conviction was overturned.

1970: The Controlled Substances Act is enacted (replacing the unconstitutional Marihuana Tax Act). Cannabis is classified as a Schedule I drug, determined to have a high potential for abuse and no accepted medical use, thereby prohibiting its use for any purpose. This act was signed into law by President Richard Nixon. 

This legislation created five classifications, with specific qualifications for a substance to be included in each. The substances scheduling (classification) are determined by the Drug Enforcement Agency (DEA) and the Food and Drug Administration (FDA). Yet, Congress does have the power to schedule or de-schedule substances through legislation. Substance scheduling decisions are based on its potential for abuse, accepted medical use in treatment in the United States, and international treaties.

Classification of Controlled Substances:

Schedule I: High potential of abuse, not acceptable for medical use

Schedule II: High potential of abuse, sometimes allowed with “severe restrictions” for medical use

Schedule II: Medium potential of abuse, acceptable for medical use

Schedule IV: Moderate potential of abuse, acceptable for medical use

Schedule V: Lowest potential of abuse, acceptable for medical use

1984-1986: Mandatory Sentencing and the three-strikes law were created under the Reagan Administration. This accounts for some of the harshest drug laws created including mandatory 25-year imprisonment for certain drug offenses and the promotion of the death penalty to be used against “drug kingpins”.

1998: House Joint Resolution 117, encouraged by the passing of California’s Prop 215, the House of Representatives passed this measure to support the existing Federal legal process for determining the safety and efficacy of certain drugs. 

2011: Delaware Medical Marijuana Act removes criminal sanctions and protects from arrest for doctor-recommended use of medical marijuana for Delaware patients with severe medical conditions. The law took effect in July 2011, whereas patients may not grow their cannabis yet can possess up to 6 oz of cannabis at a time. 

2014: The Rohrabacher–Farr Amendment passed in the U.S. House and signed into law prohibiting the Justice Department from interfering with the implementation of state medical cannabis laws.

2015: Delaware’s Decriminalization of cannabis. Governor Markell signed legislation decriminalizing the possession of at most 1 oz of cannabis by adults.  Possession will marijuana remain an infraction with a $100 fine. As expected, the bill passed along party lines, with no Republican members voting in support of the bill.

Under this legislation, cannabis possession remains illegal for minors under 21.   

2017-present: A bill to legalize recreational use of cannabis for adults in Delaware has been set to be introduced to the state senate. While the bill has been announced, no further action has been tracked. 

2018: Farm bill legalizes low-THC hemp nationwide and effectively de-schedules hemp-derived cannabidiol (CBD) from the Controlled Substances Act.

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