What Happens After Cannabis?

Cannabis legalization has spread across most of the country in some form – more than 2/3 of the states have a medical marijuana program and 15 states (representing about 1/3 of the US population) have adult use laws.  A number of other states (like New York and Connecticut) are queuing up to legalize soon.  Hemp has now been made federally legal and federal regulation of CBD should be forthcoming.  While the unfolding of cannabis legalization still has a bit to go, it is not the new kid on the block anymore.  For anyone interested in state-level regulatory experiments, it is worth your time to take a look at the psychedelic space.

What’s the Argument for Legalization of Psychedelics?

As with cannabis, there are some contrasting philosophies behind legalization of psychedelics: (1) treat them like highly regulated medicines, or (2) treat them like plants that don’t need government intervention.  Of course, this dichotomy is most pronounced with the substances that can be found and consumed directly in plants, like magic mushrooms.  Consideration of the substances that require a laboratory (like LSD) may highlight the libertarian arguments for “cognitive liberty”.  The cannabis legalization movement has effectively mixed and matched these different approaches to some extent, and we expect that psychedelic advocates will do so to an even more pronounced degree.  We expect to see jurisdictions that simply “decriminalize nature”, and others that turn these substances into legal but highly restricted and regulated drugs.  If money is any indication, the race is well under way – many hundreds of millions of dollars of capital investment are currently pouring into the psychedelic startups, despite the unchanged status as federally illegal drugs.

 How are People Currently Getting Psychedelics?

As with cannabis, there is a thriving underground economy trafficking in psychedelics of all sorts.  Purveyors of mushrooms feature numerous varieties and are working hard to select for the best qualities and characteristics.  There are amateur “homegrowers” who grow psilocybin mushrooms just as their neighbor grows shitakes.  There is an industry of shamans and guides, both domestically and internationally, who can be hired as company on a trip.  And, so we hear, there are licensed psychologists who will conduct psilocybin-assisted therapy with patients on the downlow. Micro-dosing is trendy and wide-spread even among people who aren’t interested in getting high. 

Cities Lead the Way with Decriminalization

But all of this underground activity is bursting out into the open with radical new laws, first at the municipal level, and now at the state level.  In 2019, Denver voters approved a referendum decriminalizing hallucinogenic mushrooms.  Other cities, including Oakland, Ann Arbor, and Santa Cruz, have followed suit.  Of course, these local actions did not make anything actually legal – they essentially reallocated law enforcement resources away from the prosecution of the possession of small amounts of certain psychedelic substances.  It’s worth noting that federal law enforcement has not entirely looked the other way when it comes to mushrooms – there have been some arrests and federal prosecutions of relatively small-time mushroom dealers in these decrim cities, with the defendants potentially facing decades in prison.

 Experimentation

Just because these substances are illegal Schedule 1 drugs does not mean that the federal government, private organizations, and universities are not investigating potential benefits.  There has been an explosion of research and clinical trials with a wide range of substances including psilocybin, MDMA, and LSD for conditions including depression, anxiety, PTSD, and addictions.  Globally, there are studies involving DMT, ibogaine, ayahuasca, peyote, and more.   

The highly promising results of some of these studies suggest that there will be forthcoming FDA approval of new pharmaceuticals. Obviously, this will dramatically change the legal landscape.

 The First State-level Regulatory System

In November 2020, something more substantial happened: Oregon voters passed two state-wide ballot initiatives.  Measure 110 reclassifies personal possession of “hard” drugs to civil violations with small fines and an emphasis on drug treatment rather than incarceration.  Drug policy advocates around the world will be watching to see if Oregon is able to live up to its promise to help its citizens instead of put them in jail. 

Oregon’s Measure 109 promises something quite extraordinary: it creates a regulated program with licensed service providers who will administer psilocybin mushrooms to individuals 21 years or older.  This means the state of Oregon will be directly involved in the growing, distribution, and supervised consumption of psychedelic substances.  The theory behind this, of course, is that it will be a benefit to the mental health of the citizens of Oregon.   The Measure 109 proponents based their argument, in part, on the FDA’s granting a Breakthrough Therapy designation for a treatment that uses psilocybin as a therapy for treatment-resistant depression.  As the name suggests, treatment-resistant depression is difficult to treat with standard therapies and medications.  Psilocybin therapy may provide significant help to people with a variety of mental health conditions including addiction, depression, anxiety disorders, and end-of-life psychological distress.  However, the measure does not require that an individual have a condition or diagnosis in order to receive psilocybin services.

The Oregon Health Authority will spend the next two years developing a regulatory structure and an advisory board to provide psilocybin services.  Licenses will be granted for cultivators and for service centers.  The majority of license applicants must be Oregon residents for two years.  Clients will be required to attend a preparation session prior to receiving the psilocybin, and the service facilitator must offer the client an integration session afterwards.  The psilocybin must be consumed on the premises of the service center.  Towns and counties may prohibit psilocybin businesses within their jurisdictions.

Oregon’s one-two punch of decriminalizing a wide swath of controlled substances, while also setting up a regulatory structure to dispense psilocybin to adults (21+) without any medical requirement, will almost certainly force the federal government to do something.  Either intervene and say that Oregon has crossed a line, or step back and let the state experiment.  Whatever the feds do, it will be best if it is done in a clear and explicit manner, as we believe other jurisdictions are closely watching and planning their own experiments.