FBI Denies Delaware’s Request for Recreational Marijuana Background Check Code

OG Article

Department of Safety and Homeland Security | Kent County | New Castle County | News | Sussex County | The Office of the Marijuana Commissioner | Date Posted: Monday, March 31, 2025

After working with the State Bureau of Identification and the Delaware Department of Justice to secure a FBI service code to conduct the statutorily required criminal background checks for the adult use recreational marijuana market, the FBI notified the State late Friday that its reconsideration request is denied.  After review of the authorizing statute, the FBI advised that Title 4 of the Delaware Code must contain language explicitly identifying the categories of persons required to obtain a background check.  This specificity is necessary to avoid overbreadth.  The Office of the Marijuana Commissioner will work expeditiously with the General Assembly to develop proposed legislation containing criteria that is satisfactory to the FBI.

The criteria for Pub. L. 92-544 are as follows:

1. The statute must exist as a result of a legislative enactment;

2. It must require the fingerprinting of applicants who are to be subjected to a national criminal history background check;

3. It must, expressly (“submit to the FBI”) or by implication (“submit for a national check”), authorize the use of FBI records for the screening of applicants;

4. It must identify the specific category(ies) of licensees/employees falling within its purview, thereby avoiding overbreadth;

5. It must not be against public policy; and

6. It may not authorize receipt of the CHRI by a private entity.

For additional information regarding the FBI criteria, see Public Law 92-544 — FBI.