The United States contains many different lawmaking and regulatory bodies, and individuals can be simultaneously regulated by laws promulgated at the federal, state and local level. These bodies of law can also conflict, particularly in the medical and recreational drug use space. When that occurs, federal law will displace state law, and state law will usually displace local law.
In practice, the legality of certain drug-related activities can feel like it has more to do with what is enforced and prosecuted than the strict letter of the law. For example, the now-rescinded Cole Memorandum directed the United States Department of Justice not to enforce federal marijuana laws in states that had legalized marijuana in some capacity, even though marijuana remains prohibited at the federal level. Similarly, local governments cannot legalize substances that are prohibited at the state level, but they can choose not to enforce state drug laws. When this occurs, people may erroneously refer to this development as “legalization” of the activity, but when state and local law conflict, a municipality reducing the enforcement priority of a state-prohibited drug is not legalization, but rather “decriminalization.”
If a state legalizes a substance that is a Schedule I drug at the federal level, the substance is merely legal at the state level, not the federal level. Federal law enforcement can still bring charges against individuals and organizations for violations of federal law, even if the activity is legal at the state level. Whether the federal government chooses to prosecute individuals for violations of federal drug laws in states that have legalized the substance is a matter of executive discretion and the ongoing political relationship between the federal government and the states.
Given the ongoing conflicts between federal, state and local law, it is important for participants in the nascent psychedelics industry to know the status of the law across all levels of government. Below, we explore how selected states and jurisdictions have addressed the legal status of psychedelics.
Psilocybin, LSD, and DMT are all Schedule I controlled substances under California law, and although MDMA is missing from the statute, it is controlled as a Schedule I substance due to federal scheduling. The one exception is that spores or mycelium capable of producing mushrooms or other material which contains psilocin or psilocybin may be used for research, instruction, or analysis, if not in violation of federal law and if approved by the Research Advisory Panel.
Senate Bill 519 would decriminalize certain hallucinogenic substances, including the possession, obtaining, giving away, transportation and specified quantities of psilocybin, psilocin, DMT, ibogaine, mescaline, LSD, and MDMA for personal use or facilitated or supported use by a person 21 or older; however, ketamine was removed from the list due to worries about its potential use as a date-rape drug.
The bill contained a trigger to reschedule any of the psychedelics listed above at the state level, should the federal government reschedule such substances outside of Schedule I. Once the federal government reschedules a drug, it is passed to the states for potential rescheduling. The process varies from state to state. Currently, under California law, the process of rescheduling a drug involves a legislative vote, per the California Health & Safety Code §§ 1054-58.
The bill had passed the California Senate; however, the California State Assembly Appropriations Committee removed the decriminalization and the rescheduling aspects of the bill. On August 12, 2022, the bill’s sponsor, Senator Scott Wiener, announced that he will not be pushing passage of the bill as amended but intends to reintroduce the legislation next year.
There have also been significant recent developments at the local level throughout California, including:
- On September 7, 2022, the San Francisco Board of Supervisors unanimously passed Resolution No. 220896, to decriminalize “adult use of entheogenic plants on the Federal Schedule 1 List be amongst the lowest priority for the City and County of San Francisco.”
- The City Council of Oakland, California adopted Resolution No. 87731 CMS, resolving that “no department, agency, board, commission, officer or employee of the city, including without limitation, Oakland Police Department personnel, shall use any city funds or resources to assist in the enforcement of laws imposing criminal penalties for the use and possession of Entheogenic Plants by adults.”
- The City Council of Santa Cruz passed Resolution NS-29,867, “declar[ing] its desire to not expend City resources in the investigation and arrest of persons twenty-one (21) years of age and older solely for the personal use, personal possession and personal cultivation of Entheogenic Plants and Fungi listed on the Federal Schedule 1 list with the exception of entheogenic cacti that contain phenethylamine compounds such as mescaline and that such activities should be considered among the lowest law enforcement priorities for the City of Santa Cruz.”
- The Arcata City Council passed Resolution 212-17, resolving that “the investigation and arrest of persons for planting, cultivating, purchasing, transporting, distributing, engaging in practices with, or possessing Entheogenic Plants and Fungi or plant compounds which are on the Federal Schedule 1 list shall not be a public safety priority for the City of Arcata.” However, the resolution specifically excludes “commercial sales or manufacturing of [entheogenic] plants and fungi, possessing or distributing these substances in schools, driving under the influence of these substances, or causing a public disturbance or jeopardizing public safety resulting from the influence of these substances.”
Psilocybin, LSD, MDMA, and DMT are Schedule I controlled substances under Colorado law. In 2020, Colorado enacted HB19-1263, which makes the possession of 4 grams or less of a Schedule I or II drug a misdemeanor, except that a fourth or subsequent offense for possession of 4 grams or less of a Schedule I or II controlled substance or any amount of a Schedule III, IV, or V controlled substance is a level 4 drug felony. Possession of any amount of gamma hydroxybutyrate is a level 4 drug felony.
Notably, Colorado introduced Initiative 58, the Natural Medicine Health Act of 2022 (NMHA), to establish psychedelic treatment centers trained facilitators, akin to what is being developed in Oregon. The Act does not allow recreational sales of these substances. Indeed, sales outside of what is permitted for the therapeutic program mandated by the Act continue to be prohibited under state law.
Initiative 58 qualified for the Colorado ballot on July 21, 2022, as Proposition 122 and was approved by voters during the November’s midterm elections. Psilocybin and psilocin would be the only included natural medicines until June 1, 2026. At that time, DMT, ibogaine, or mescaline (excluding lophophora williamsii, or peyote) may be added at the recommendation of the Natural Medicine Advisory Board.
Cultivation, possession, storage, use and sharing of psilocybin and psilocin are legalized under the NMHA for individuals 21 years and older for personal use. The NMHA allows for cultivation on the grounds of a private home or residence if such activity is secured from access by anyone under the age of 21. The NMHA does not permit ingestion of psilocybin or psilocin in a public area outside the context of a healing center, does not allow a person to drive a motor vehicle, boat or aircraft under the influence of these substances, does not allow use in a school or detention center, or engage in conduct that endangers or harms anyone, and does not require any employer to accommodate the use, consumption, possession, or transfer of these substances in the workplace. The NMHA does not specify amounts or limits but rather states “the amount a person may cultivate or possess of natural medicine necessary to share natural medicines with other persons twenty-one years of age or older within the context of counseling, spiritual guidance, beneficial community-based use and healing, supported use, or related services.” Moreover, the NMHA explicitly states it does not exempt anyone from federal law.
The NMHA directs the Department of Regulatory Agencies to develop rules for regulated access to natural medicines to “regulate the manufacture, cultivation, testing, storage, transfer, transport, delivery, sale, and purchase of natural medicines by and between healing centers and other permitted entities and the provision of natural medicine services to participants.” A 15-member Natural Medicine Advisory Board shall be appointed by the governor with consent by the Senate by January 31, 2023. This Board is tasked with making recommendations such as access to the natural medicines, training of facilitators and data collection, reporting and publication. The rules around data collection will be of interest to follow as they will likely intersect with privacy issues. If the treatment centers were considered medical institutions, certain privacy laws and regulations such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA), would apply; however, the centers to be developed under the NMHA might not be subject to traditional healthcare regulations and privacy of patients and facilitators, and other legal doctrines such as physician-patient privilege protection, may not apply.
By January 1, 2024, rules regarding the criteria for treatment facilitators who provide natural medicine services and any training programs must be established. By September 30, 2024, the Department of Regulatory Agencies will be accepting applications for licensure of the healing centers. The NMHA creates the Regulated Natural Medicine Access Program Fund in support of this new program. The NMHA also permits localities to regulate healing centers within its boundaries but does not permit any locality from banning or prohibiting the operation or establishment of a licensed healing center. Thus, a given licensed healing center will be afforded some level of protection from being potentially ousted out of a municipality if operating within Colorado. By comparison, Oregon’s Psilocybin Services Act allowed localities to opt out of having psilocybin service centers or manufactures operate within a given locality.
Additionally, the NMHA provides that individuals who have completed a sentence for a conviction and who would not have been guilty under the NMHA if it were in force at the time of their conviction, may file a petition to have their records sealed at no cost.
Additionally, Colorado’s HB22-1344 was signed into law June 8, 2022, which amends Colorado’s scheduling to legalize the prescribing, dispensing, transporting, possession, and use of MDMA for psychedelic assisted therapy on the event the federal government reduces MDMA’s status as a schedule I drug. This may come into play fairly soon as it is anticipated that the MDMA-assisted psychotherapy treatments undergoing Phase 3b clinical trials will be approved by the U.S. Food and Drug Administration as soon as 2023.
On the local level in Colorado, the city of Denver has deprioritized the enforcement of criminal penalties for personal possession of psilocybin through Initiative 301. The ordinance establishes that “[t]he enforcement of any laws imposing criminal penalties for the personal use and personal possession of psilocybin mushrooms as those terms are defined herein shall be the lowest law enforcement priority in the City and County of Denver.”
Oregon law follows federal scheduling, meaning psilocybin, LSD, MDMA, and DMT are Schedule I controlled substances. With certain exceptions, substances legalized or that undergo scheduling changes at the federal level will reflect in Oregon’s scheduling system.
Oregon became the first state to legalize psilocybin-assisted therapy and decriminalize personal possession. Ballot Measure 109—the Oregon Psilocybin Services Act—directs the Oregon Health Authority (OHA) to adopt regulations and receive applications for the license of persons to manufacture psilocybin products, operate psilocybin service centers, facilitate psilocybin services, and test psilocybin products, and the OHA has stipulated that it will begin receiving applications for licensure on January 2, 2023.
The OHA adopted its initial set of rules related to psilocybin products, testing and training programs. The rules establish, among other things, psilocybin training program requirements. Training program applicants must submit a $500 non-refundable fee and a description of the proposed curriculum that shows the program meets the requirements of OAR 333-333-3050, 3060, 3070 and 3090. Training program curriculum approval is valid for five years. In September 2022, three Rules Advisory Committees (RACs) discussed proposed rules on (1) Packaging, labeling and product transportation, (2) Licensing, facilities, and operations, and (3) Facilitator conduct, preparation, administration, and integration sessions. The current draft adds substantially to the Definition section, establishes a Client Bill of Rights and defined prohibited conduct, and incorporates a Social Equity Plan requirement to insure diversity, equity, and inclusion. The proposed rules also include a residency requirement and set forth informed consent language. The public comment period runs from November 1, 2022 to November 21, 2022.
Measure 109 included a process through which cities and counties could back out as long as the opt-out measure was on the November 8 ballot. The majority of Oregon counties who had an opt-out measure on the November ballot, mostly rural, voted against psilocybin therapy.
Psilocybin, LSD, MDMA, and DMT are Schedule I controlled substances under Washington state law. There are currently no medical uses permitted.
Washington Senate Bill 5660—the Psilocybin Wellness and Opportunity Act—would legalize the supported adult use of psilocybin by people 21 years of age and older, and is based heavily on the Oregon Psilocybin Services Act. Senate Bill 5660 did not become law but there may be other reform bills forthcoming.
In State v. Blake, 197 Wash. 2d 170 (2021), the Washington Supreme Court held that a strict liability felony drug possession statute violated the due process clauses of the Fourteenth Amendment of the Federal Constitution and Article I, § 3 of the Washington Constitution. In response, the Washington Legislature passed SB 5476, which will become effective July 25, 2022. It reduces the penalty for possession of controlled substances to a misdemeanor and encourages the prosecutor to divert such cases for assessment, treatment or other services. This reduced penalty provision will expire July 1, 2023.
There has also been recent activity in Washington on the local level, including in:
- Seattle, which passed Resolution 32021, stating that the “investigation, arrest, and prosecution of anyone engaging in entheogen-related activities should be among The City of Seattle’s lowest law enforcement priorities and stating the Council’s support for full decriminalization of these activities.”
- The city of Port Townsend, which passed Resolution 21-088, declaring that the “investigation, arrest, and prosecution of adults engaging in entheogen-related activities should be a low enforcement priority.”
Connecticut passed “An Act Increasing Access to Mental Health Medication,” which established a psychedelic-assisted therapy pilot program to provide certain patients with funding to receive MDMA or psilocybin-assisted therapy. Connecticut residents who are veterans, retired first responders, direct health care workers, or from a historically underserved community, and that have serious or life-threatening mental or behavioral health disorders and lack access to effective mental or behavioral medication are can seek assistance under the program as “qualified patients”.
Entities that wish to provide psychedelic-assisted therapy under the program must be a “qualified applicant”—a provider of mental or behavioral health services and have received approval from the FDA as a treatment site with an expanded access protocol that allows the provider access to an investigational drug for treatment use, including emergency use.
Qualified applicants can apply to the Department of Mental Health and Addiction Services for approval as a treatment site on or before November 29, 2022. Approved sites must collect and provide data to the Department of Mental Health and Addiction Services, including its protocols for providing MDMA and psilocybin-assisted treatment, training on the facilitation of treatment, implementation of facility standards, strategies for patient protection and mitigation of drug diversion.
The authors wish to thank Husch Blackwell summer associate, Matti Mortimore, for his contributions to this article.
Kimberly Chew and Natasha Sumner are attorneys in the Psychedelic and Emerging Therapies practice group at Husch Blackwell LLP.