The conversation around marijuana coming to Delaware continued Wednesday, with the House Health & Human Development Committee reviewing a bill that would legalize recreational use of the drug and establish licensing guidelines for a commercial industry.
House Bill 150 was eventually released from committee after three and a half hours of debate from committee members and public commenters, with 10 yes votes from all Democratic committee members and Pike Creek Republican Michael Smith, and five Republican representatives voting no, including Richard Collins, Kevin Hensley, Ruth Briggs King, Bryan Shupe, and Charles Postles Jr.
The bill's primary sponsor, Newark Democratic state Representative Ed Osienski said the bill would permit adults 21 years of age and older to legally possess and consume up to an ounce of marijuana, create a process for record expungement of non-violent marijuana-related possession convictions, and regulate the oversite and license issuing for retail, manufacturing, cultivation, and testing, but would still leave some previous rules in place.
"HB 150 would not change existing state law regarding driving under the influence of an illicit or recreational drug," Osienski said. "It also would not allow individuals to grow their own plants. Public consumption of marijuana would still be illegal. Employer enforcement largely would not change; employers would be permitted to drug test workers for marijuana to ensure any zero tolerance policies are being followed, as well as prohibit the consumption of marijuana at work."
The bill also still has quite a journey ahead of it, and is one of the uncommon bills which must visit a second committee. Its release Wednesday is only the first step, and the legislation must now head to the appropriations committee due to a fiscal note attached.
"This is the first step," the representative said. "We still have to go through appropriations, and this bill will not be heard on the House floor until after our Easter break sometime, possibly at the end of April or early May."
The roots of marijuana prohibition and the racism that surrounded those decisions to institute certain policies are evident even now, as Osienski's bill looks to take a number of approaches to address those populations that have disproportionately been impacted by those laws. But support from Rep. Eric Morrison (D-Glasgow) reached back to the 1930s and the ways anti-marijuana legislation was so blatantly racist.
"The first commissioner of the US Treasury Department's Federal Bureau of Narcotics Harry Jacob Anslinger began a war on cannabis specifically to target Mexican Americans and Black Americans," Morrison said. "In fact, Anslinger is on record as saying horrible, racist things...He said that marijuana makes Black people think they are as good as white people. He also said, and I quote, 'The primary reason to outlaw marijuana is its effect on the degenerate races.' I also quote, 'There are 100,000 total marijuana smokers in the US, and most are Negros, Hispanics, Filipinos, and entertainers. Their satanic music--jazz and swing--result from marijuana use. This causes white women to seek sexual relations with negros, entertainers, and any others.'"
He also pointed to President Richard Nixon's Domestic Policy Chief John Ehrlichman, who said associating "the hippies and the Blacks" with heroin and marijuana would disrupt those communities, and give officials an opportunity to break into their homes, break up meetings, and "vilify them night after night on the evening news."
Concerns from those voting no included how disproportionately impacted communities would be identified, that appropriate and adequate labeling and packaging would be included to identify health risks, infant exposure, and flavoring restrictions, as well as arguing that the proposed 15% point-of-sale tax would fuel more black market distribution, not diminish it, while increasing use among the youth population.
"Even in states that have not legalized, there will be cases of minors purchasing cannabis through the illegal market...It will be regulated and controlled just like alcohol, but we know minors will eventually get their hands on alcohol, too," Osienski said, adding later prohibition didn't stop alcohol sales, but now there are bars everywhere. "We can take history here in the United States and use the prohibition of alcohol as an example. When that prohibition existed, it was a boon for the illegal market, and it was a criminal enterprise, and it had many, many negative effects on our community. And that's why it was recognized, and repealed."
Bowers Beach Rep. Postles in particular pointed to Colorado as an example where legalization, in his opinion, was failing. He said Federal DEA reports showed illicit markets grew dramatically there, overall marijuana use among high school students was up 70% and in the last 30 days was up 150%, and there were a plethora of physical and mental health side affects presenting in those using marijuana.
"The DUIs have increased at a significant rate once marijuana was legalized," Postles said. "That's very much a concern. Along with that, I've heard from a number of business people, the community has some concerns how this is going to affect their employees, how it's even more going to affect their liability exposure, and how it will affect the performance of their employees, obviously decreasing motor responses, response time, and is one of the known effects of using marijuana. Affects judgment, as well."
Millsboro Rep. Collins echoed some of those same concerns, and said corruption would be staggering in the industry because he had a friend who received an offer to purchase a marijuana plant once back in college for $10,000. He then brought up the issue of CDL drivers and jobs with background checks being in danger of using a product those individuals are now being told is legal.
"I believe those industries already have zero tolerance drug testing," Osienski said. "It's not like we're inventing this product. It's out there now. So, I think most employees when they are employed, they are informed about zero tolerance drug testing policies. So most of your employees--no, all of your employees-- are quite aware of what their employers policies are at the point of employment."
Advocates from both sides of the issue showed up in public comment. The Division of Public Health made a request that tax revenue collected would be partially designated to their behavioral health systems. The Department of Agriculture wanted clarification added that would ensure hemp was regulated separately from marijuana for recreational use. The Delaware Police Chiefs Council said the bill does nothing to improve public safety and, in fact, diminishes it. One member of the public, Karen O’Keefe, director of state policies at the Marijuana Policy Project, specifically called out the concerns presented by Postles and Collins regarding increased usage among youth as not being grounded in fact.
"All surveys of youth cannabis use in Colorado show rates are down since legalization. The large scale Healthy Kids Colorado survey shows high schoolers recent cannabis use decreased from 22% in 2011, which is pre-legalization, to 20.6% in 2019," O'Keefe said. "Similarly, the National Survey on Drug Use and Health reports that marijuana use is down--7.02% in 2019, that's where it is now--from 10.74% immediately prior to legalization. Meanwhile, Colorado's high school graduation rates are up from 72% in 2010 to 81.1% in 2018."
At a Spring Manufacturing & Policy Conference earlier in the same day, representation from the Delaware State Chamber of Commerce read into record their take on the issue during a roundtable on recreational marijuana legalization.
"The State Chamber position on the legalization of recreational marijuana can be summed up this way: We respect the rights of the adults to do what they want where and when it's appropriate. Employers, however, want to have the ability to preserve their own unique policies on this topic, and prefer to wait for technology to spot-test for impairment and immunity from liability."