Delaware lawmakers didn’t wait long to file legislation that serves as a potential solution to a denial notice from the Federal Bureau of Investigation (FBI) that has upended the state’s plans to launch adult-use cannabis sales.

In that denial, the FBI advised the Delaware Office of the Marijuana Commissioner (OMC) that the federal agency couldn’t provide a service code for the state to initiate its statutorily required criminal background checks via a fingerprinting system. The background checks are for those who wish to obtain a license to operate an adult-use cannabis business.

More specifically, the FBI determined that it couldn’t provide Delaware the service code to run criminal history reports because Title 4 of the Delaware Code was too vague regarding who would be required to obtain the background checks.

“This specificity is necessary to avoid overbreadth,” the OMC announced on March 31, when the state’s regulators shed light on the FBI’s denial notice.

To align Delaware’s cannabis laws with the FBI’s standards, state Rep. Ed Osienski, D-Newark, and Sen. Trey Paradee, D-Dover, filed House Bill 110 on April 3. The legislation amends Title 4 to provide that the following persons are required to complete a background check under the state’s cannabis laws:

1. An applicant for a cannabis establishment license;
2. A person who performs work at or for a cannabis establishment, whether classified as a contractor, employee or volunteer, with or without compensation, and prior to beginning work;
3. A person who is or seeks to become a director, officer, board member or agent of a licensed cannabis establishment or a business entity that is an applicant for a cannabis establishment license; and
4. A person who holds an ownership interest of 10% or more in a licensed cannabis establishment or a business entity that is an applicant for a cannabis establishment license.

“I know this is a disappointing setback, especially for the entrepreneurs who have invested so much and the consumers who have been anxiously waiting for legal access,” Osienski said in a public statement on Thursday. “But I’m optimistic that this bill will provide the necessary fix to get Delaware’s adult-use cannabis market back on track. I’m committed to getting this bill through the legislative process as quickly as possible so we can finally get this industry up and running.”

This setback comes two years after the Delaware General Assembly passed a pair of adult-use legalization bills that former Democratic Gov. John Carney allowed to go into effect without his signature.

In late 2024, the OMC held lotteries to award 125 conditional licenses to adult-use business applicants, including 60 for cultivation, 30 for manufacturing, 30 for retail and five for testing labs. However, those awardees can’t receive their actual licenses before fulfilling certain prerequisites, such as the state’s statutorily required criminal background checks.

The OMC’s initial timeline to issue the licenses was November 2024 for the cultivation awardees, December 2024 for the manufacturing awardees, and March 2025 for the dispensary and testing lab awardees.

Based on that schedule, Delaware’s former marijuana commissioner, Rob Coupe, who resigned in early January, had hoped to commence adult-use sales via licensed dispensaries as early as March 2025. But the FBI hiccup has derailed that plan as regulators and lawmakers work toward an equitable program rollout that includes not just the state’s existing medical cannabis operators but also the 125 new licensees.

Now, the hope is that H.B. 110 brings Delaware into compliance with the requirements of Public Law 92-544, which governs access to FBI criminal history record information.

In addition to H.B. 110, Osienski and Paradee have led the legislative charge in crafting past legislation to help reform the state’s cannabis laws and establish a functionable marketplace.

“I share the frustration of many Delawareans as recreational marijuana dispensaries remain inoperative nearly two years after legalization,” Paradee said in a public statement. “While the establishment of this industry continues to face setbacks, the state is actively losing out on revenue at a time when critical federal funding has been cut by the White House. I am committed to finding long-term solutions that will finally establish the marijuana market so many have fought for over the last several years.”

Under the Delaware Marijuana Control Act, a 15% excise tax will be imposed on adult-use cannabis sales, with 7% of the revenue generated from that tax going toward a Justice Reinvestment Fund to administer grants, contracts, services or related initiatives.

H.B. 110 was referred to the House Economic Development/Banking/Insurance and Commerce Committee. While the Delaware General Assembly is in session until June 30, the legislation would need to be enacted before the OMC could reapply for the FBI service code.

The federal service code allows the Delaware State Bureau of Identification to generate criminal history reports and conduct background investigations. Without the code, the 125 awardees are left idle in the license process.

Delaware’s Acting Marijuana Commissioner Paul Hyland expressed gratitude for the lawmakers moving quickly to file this week’s legislation.  

“I want to thank Representative Osienski and Senator Paradee for swiftly bringing this critically important legislation together,” he said. “The OMC remains committed to implementing a well-regulated, compliant and equitable adult-use marijuana market in Delaware.”