State agency trying to resuscitate Delaware’s busted medical marijuana law

With Delaware’s recently passed medical marijuana law on pause, Delaware Health and Social Services says it’s looking into “potential alternatives.”

Signed into law last year, Gov. Jack Markell, D-Del, suspended the regulatory writing and licensing process for what would have been the state’s three medical marijuana dispensaries–one in each county.

DHSS, the state agency in charge of the medical marijuana program, said the move came after the federal government changed its stance on medical marijuana. Under the new policy, state employees were no longer immune from prosecution or criminal charges.

Now, DHSS Secretary Rita Landgraf and the bill’s primary sponsor, state Sen. Margaret Rose Henry, D-Wilmington East, are working closely together, trying to figure out how to move forward. Landgraf says the pair met last week, and she plans to meet with Sen. Henry and SB 17‘s other sponsors in the coming weeks to keep the discussion going about moving forward with licensing and regulation as the state works through this hiccup.

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“What [Sen. Henry] wants to investigate is to remove the threat of criminal prosecution of state workers through a federal law that provides immunity to any duly authorized officer of a state or local government who is lawfully engaged in the enforcement of any law ordinance relating to controlled substances… Now that law typically would apply to law enforcement officers that take control of, or take possession of, controlled substance during an investigation, so she’s going to see if there’s something within that law that can be utilized that will allow us to proceed forward without any prosecution,” said Secretary Landgraf. “The other thing that she and I also discussed is that the federal government does allow for research purposes medical marijuana… Could we expand that federal law to allow dispensaries and individuals with extreme illnesses to still have access?”

Before the fed drama, the governor’s recommended FY 2013 budget allocated four full-time employees and $480,000 to get the medical marijuana program going.

Meantime, according to the original timeline, regulations are supposed to be drafted and put out for public comment by April 1, 2012.

What happened?

DHSS Secretary Rita Landgraf says Gov. Jack Markell had no choice but to suspend the regulatory and licensing process. 

The move came after the federal government changed its stance on medical marijuana. According to Landgraf, state lawmakers based Delaware’s medical marijuana law on the U.S. Dept. of Justice’s October 2009 medical marijuana policy.

“Even though it didn’t permit states to actually cultivate or distribute medical marijuana, it kind of left it in the states’ hands in a way that was non-threatening that states would be prosecuted,” said DHSS Secretary Rita Landgraf. “Then… we heard that the guidance was shifting.”

A shift last summer that prompted the state to ask for guidance and an opinion on the Dept. of Justice’s stance from U.S. Attorney Charles Oberly. In his letter to the state, he wrote, “State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability under the Controlled Substances Act.”

Other states have medical marijuana laws on their books, but Secretary Landgraf says because Delaware’s dispensaries weren’t operational yet and regulations hadn’t been drafted, that actually put Delaware at more risk for prosecution and criminal charges.

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