Legislative sessions and midterms in 2022 brought notable changes
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. In this article, 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 possession, obtaining, giving away and transportation of 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.
The bill passed the California Senate; however, the California State Assembly Appropriations Committee removed the decriminalization and the rescheduling aspects. 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 in 2023.
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.
Colorado introduced Initiative 58, the Natural Medicine Health Act of 2022 (NMHA), to establish psychedelic treatment centers with 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 was approved by voters during 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.
Moreover, the NMHA explicitly states it does not exempt anyone from federal law.
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 to adopt regulations and receive applications for the license of people to manufacture psilocybin products, operate psilocybin service centers, facilitate psilocybin services and test psilocybin products. 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. Training program applicants must submit a $500 non-refundable fee and a description of the proposed curriculum that shows the program meets the proper requirements.
In September 2022, three Rules Advisory Committees discussed proposed rules on a) packaging, labeling and product transportation; b) licensing, facilities and operations; and c) facilitator conduct, preparation, administration and integration sessions. The current draft establishes a client bill of rights, defines prohibited conduct and incorporates a social equity plan requirement to ensure diversity, equity and inclusion. The proposed rules also include a residency requirement and set forth informed consent language.
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 that 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, the Washington Supreme Court held that a strict liability felony drug possession statute violated the due process clauses of the 14th Amendment of the federal Constitution and Article I, Section 3 of the Washington Constitution. In response, the Washington Legislature passed SB 5476, which became 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.
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 — 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 Food and Drug Administration as a treatment site with an expanded access protocol that allows the provider access to an investigational drug for treatment use, including emergency use.
Kimberly Chew and Natasha Sumner are attorneys in the psychedelic and emerging therapies practice group at Husch Blackwell LLP. The authors wish to thank Husch Blackwell summer associate Matti Mortimore for his contributions to this article.