Marijuana in Delaware: Legislative Updates
As Delaware courts test the anti-discrimination provision of the medical marijuana statute, the state legislature has been taking a hard look at marijuana as well. Legalization, decriminalization, and expansion to the medical marijuana program are all on the table.
Regarding the potential for Delaware legalizing recreational marijuana, we renew our 2018 prediction that this is still not likely in 2019. Especially with the retirement of both the House and Senate champions at the end of last session and a failed floor vote in the House in June. That said, it is possible that with so many new faces in legislative hall, fifteen out of sixty-two, there are surprise support votes that come to light. No bill has been filed, but one is anticipated.
As the legalization pathway or non-pathway becomes clearer, the legislature is taking another pass through decriminalization and medical marijuana.
First, Senate Bill 45 extends previous adult decriminalization to persons under the age of 21. If passed, the penalty for possession, use, or consumption of a “personal use” quantity of marijuana would go from criminal to civil.
As frustration builds on the legalization side, pressure also mounts to streamline and enlarge the medical marijuana program. While new dispensaries are opening, now numbering four around the state, the statutory pathways to qualify for a card for their use are being revisited.
Senate Bill 59 expands the pathway for certifying a qualifying condition from physicians to also include nurse practitioners and physician assistants, creating a new umbrella definition of the three licensees as “health-care practitioner.” The interesting nuance is that in doing so, the bill eliminates a previous requirement that for patients under 18; presently minors must be qualified specifically by a pediatric physician. This requirement is removed altogether.
More eye-catching is Senate Bill 24, which could, if it moves forward in its current form, really call the question the legislature’s faith in the fundamental program structure. Due to the “squishy” evidence around marijuana’s medical efficacy, mostly the result of remaining a Schedule I drug federally, no physician prescribes marijuana. Instead, the legislature created a list of “qualifying conditions” that can be expanded through public health regulation. The physician certifies a qualifying condition and the Department of Public Health then provides the patient with a medical marijuana card that gives patients permission to purchase at a dispensary. The separation of medical practice, limited to diagnosis, from a judgment on the efficacy of marijuana as a treatment, is intentional.
Of course, there are perennial skirmishes over legislation that seeks to add more and more qualifying conditions to the statute, often, but not always, these disputes signal legislative disagreement with Public Health when they have refused to add a condition via regulation, citing a lack of evidence.
Senate Bill 24 fast-forwards the entire debate by adding a line: “Any other medical condition or its treatment identified in a physician’s written certification for which the medical use of medical marijuana is likely to provide a therapeutic or palliative benefit.” In just thirty words, the legislature could undermine the programmatic structure: a physician can designate a variety of conditions as qualifying for a medical marijuana card, without additional legislative or regulatory action. It will be interesting to see where this legislation goes as it truly does cut to the heart of the legislature’s confidence in the scheme it created nearly a decade ago by giving physicians (whether they want it or not) much more power to grant access to medical marijuana.
Lastly, an offshoot of this conversation worth noting is that it has re-sparked a conversation around the use of cannabidiol (CBD) oil as the research of its use, particularly in pediatric settings, has been distinct from research on broader marijuana use. Look for more legislative nuance as it comes to the medicinal use of CBD oils in Delaware.