A Fresh Look at Colorado's Psychedelic Law, the Natural Medicine Health Act
The flexibility of Colorado's regulated program creates opportunities for equitable access to psilocybin, including religious use, home administration, delivery, and retail sales
In a recent phone call, Oregon attorney Jon Dennis and I shared our latest thoughts on Colorado’s Natural Medicine Health Act (Proposition 122). Though frequently compared to Oregon’s Measure 109, which voters passed in 2020, Colorado’s new law differs from Oregon’s in many ways. We drew some novel conclusions, which I’ll discuss further below. Specifically, in Colorado, licensed service centers and psychedelic facilitators appear to be optional, and retail dispensaries appear to be possible. Importantly, the Department of Regulatory Agencies (DORA) could create rules to accommodate spiritual and religious communities, providing them with protection under state law.
I have previously noted that unlike Measure 109, which is clearly non-therapeutic, Proposition 122 blurs the lines between medical and non-therapeutic use of psychedelics. Its language reflects this difference. In Oregon, facilitators provide psilocybin services at licensed service centers, while in Colorado, they can provide natural medicine services at licensed healing centers. But the differences are far more than linguistic.
Unlike Measure 109, which prohibits Oregon from requiring clients to have medical diagnoses or doctors’ prescriptions before receiving psilocybin, Proposition 122 does not include these limitations. As a result, DORA could require clients to have medical diagnoses or prescriptions.
Measure 109 promotes a non-directed approach to Oregon’s psilocybin services, and draft rules prohibit facilitators from diagnosing or treating health conditions. Further, the rules bar service centers from being located within healthcare facilities. These restrictions segregate medical services provided in Oregon from the state’s non-therapeutic psilocybin services. By comparison, in Colorado, psilocybin services can be blended with healthcare services and medical facilities in ways that could jeopardize the program and its participants. Specifically, Colorado’s regulated access program may be on a collision course with the Food and Drug Administration (FDA).
If Colorado healing centers or facilitators make medical claims regarding psilocybin, which is prohibited in Oregon, the FDA might be forced to intervene. Last month, the FDA sent warning letters to CBD manufacturers for making false medical claims. Though the FDA might approve COMP360, Compass Pathway’s proprietary formulation of psilocybin, before Proposition 122 becomes fully operational, the psilocybin provided by Colorado facilitators will remain federally illegal and unapproved for medical use. Consequently, Oregon’s separation of psilocybin services from and medical services and healthcare facilities is smart and could help avert federal intervention.
Fortunately, during Proposition 122’s eighteen-month implementation period, DORA could minimize the extent to which its regulations blur the lines between medical psychedelic use and non-therapeutic use. Proposition 122 includes flexibility that allows for regulated access to psychedelics outside of licensed facilities, and even without licensed facilitators. During our recent conversation, Jon Dennis and I discussed this flexibility. Below are some highlights.
Please note that these comments apply only to the text of Proposition 122 and its regulated access program. The discussion does not address the personal use section of Proposition 122 or account for DORA’s rules, which will significantly impact the regulated program. Further, although DORA could add other psychedelics to the program in 2026, I focus primarily on psilocybin because it’s the only substance that is guaranteed to be included.
Under Colorado’s Proposition 122:
Psilocybin may be administered outside of licensed healing centers
Though Oregon’s Measure 109 has many well-designed features, one shortcoming is the program’s over-reliance on licensed service centers. Facilitators must administer psilocybin at these centers. There are no exceptions, not even for people medically unable to travel service centers. This flaw threatens the program’s future. The Oregon Health Authority is imposing burdensome regulations on service centers, including an annual license fee of $10,000. Consequently, many aspiring service center operators are abandoning their plans.
Some worry this regulatory bottleneck will limit the number of service centers and create a surplus of facilitators with nowhere to work. In addition to reducing access for clients, this bottleneck will generate less revenue from taxes and fees to fund Oregon’s program. Fearing this, the Oregon Health Authority is asking the state for $6.59 million in public funds to keep the program running from July 1, 2023 to June 30, 2024.
Colorado’s Proposition 122 can avoid this bottleneck. The law allows facilitators to provide psilocybin outside of licensed facilities, and the definition of administration session specifies that sessions may occur at “another location” permitted by DORA. That means people could receive psilocybin in their homes or other locations, such as churches, concerts, or community centers.
Psilocybin facilitators are optional
Notably, unlike Measure 109, Proposition 122 does not require psilocybin to be administered by licensed facilitators. Instead, it allows another “authorized person” to administer psilocybin or provide preparation and integration sessions. Because Proposition 122 does not define “other authorized person,” that responsibility falls on DORA, which could interpret the term broadly to include Indigenous healers, members of the clergy, and other communities that don’t fit neatly into the Western medical model.
Preparation, administration, and integration sessions are optional
Measure 109 requires psilocybin facilitators to provide clients with preparation and supervise administration sessions, while offering an optional integration session. This series of three sessions constitutes Measure 109’s psilocybin services. Under Proposition 122, the analogous term is natural medicine services, and when those services are offered, they must include integration.
However, the text of Proposition 122 does not prohibit the sale of psilocybin outside of natural medicine services. Instead, it states that the regulated access program includes the manufacture, testing, storage, transfer, delivery, sale, and purchase of psilocybin AND the provision of natural medicine services. The scope of this regulated program is broad, and its distinction between natural medicine services and other commercial activities, such as delivery and sales, indicates that they are separate processes.
Other parts of Proposition 122 support the conclusion that selling psilocybin is not tied to specific facilities or the provision of natural medicine services. For instance, the law defines healing centers broadly to include any permitted organizations that satisfy at least one of three conditions:
First, a healing center can be any permitted organization that “acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, sells, or dispenses natural medicines and related supplies” OR “provides natural medicine services.” Because natural medicine services are listed as an alternative to activities like selling and dispensing, the definition suggests that Colorado healing centers need not provide natural medicine services (i.e., preparation, administration, and integration sessions). Instead, they could merely manufacture, deliver, or sell psilocybin. Notably, Proposition 122 does not prohibit sales to the public or require that sales occur only between healing centers or other permitted organizations, which means that the law allows for retail dispenaries (discussed below). Note also that Proposition 122 defines healing centers as entities and organizations rather than locations or facilities, while Oregon’s Measure 109 requires that service centers are facilities. That means Colorado healing centers need not be tied to specific buildings or locations, and they could be mobile.
Second, healing centers can be permitted organizations “where administration sessions are held.” This aspect of the definition omits any mention of facilitators or preparation and integration sessions. Therefore, it appears to allow for healing centers where non-facilitators administer psilocybin, and preparation and integration sessions are either optional or offered elsewhere.
Third, a healing center can be a permitted organization “where natural medicine services are provided by a facilitator.” Unlike the previous bullet point, this aspect of the definition requires facilitators and the provision of preparation, administration, and integration sessions. This aspect of the healing center definition most closely resembles Oregon’s service centers.
Suffice to say, Proposition 122’s definition of healing centers is complex, broad, and flexible enough to allow for considerable variety in the sale and delivery of psilocybin, including in the absence of licensed facilitators and service centers (by comparison, Measure 109 requires psilocybin to be dispensed only during administration sessions held at licensed service centers, which are tied to specific locations). Even further, Proposition 122’s Section 12-170-104 allows “other permitted entities” aside from healing centers to produce, sell, or dispense psilocybin.
Retail psychedelic dispensaries are possible
Because Colorado’s healing centers can ostensibly sell or dispense psychedelics without providing natural medicine services, they could presumably take the form of retail dispensaries. Moreover, because healing centers are tied to organizations rather than specific facilities, mobile dispensaries could deliver psilocybin to people who have difficulty leaving home. That would increase access for people with mobility impairments and other disabilities. Though the retail psychedelic dispensary model has not been tried before in the United States (with the exception of illegal storefronts like Portland’s Shroom House), the Netherlands has accepted it for years. This model could significantly reduce the cost of accessing psychedelics by reducing the need for licensed facilitators and service centers.
Even if DORA does not ultimately allow dispensaries to qualify as healing centers, they could fall within the catchall term “other permitted entities” described by Section 12-170-104.
A stated purpose of Proposition 122 is to “establish a new, compassionate, and effective approach to natural medicines” by “adopting a public health and harm reduction approach” and “establishing regulated access by adults twenty-one years of age and older.” The purpose contains no requirement for mandatory facilitator supervision nor prohibition on retail dispensaries. In fact, the purpose is silent on the method used to achieve regulated access. Moreover, it requires that the remaining sections of Proposition 122 be "interpretated consistently with the findings and purposes of this section.” Reading a prohibition on retail sales, and a requirement for supervised facilitation, into the remaining sections, where no such requirements exist, may actually be inconsistent with that stated purpose.
Rules can accommodate religious and spiritual communities
During the Oregon’s implementation of Measure 109, advocates fought to ensure that the state’s psilocybin rules accommodated spiritual and religious communities. Jon Dennis introduced a framework to address these concerns, which was supported by members of the public and organizations such as the Entheogenic Practitioners Council of Oregon and the Religious Use Committee of the Psychedelic Bar Association. Despite these efforts, the Oregon Health Authority declined to develop rules tailored to spiritual and religious communities, which will be subject to the same rules as facilitators who approach psilocybin services from a Western medical perspective.
Colorado’s Proposition 122 creates new opportunities to accommodate spiritual and religious practitioners and their unique needs and perspectives. Becasue the law defines healing centers broadly, psychedelic churches could become licensed healing centers that cultivate, store, and administer psilocybin. DORA could also issue licenses, permits, or registration to spiritual and religious commnities because the law gives DORA the “the authority to create and issue any additional types of licenses and registrations.” Alternatively, spiritual and religious communities could fall under Propsition 122’s “other permitted organizations” category, which allows entities other than healing centers to produce, sell, or dispense psilocybin through the regulated access program.
Because psilocybin can ostensibly be offered outside the context of natural medicine services, spritutal and religious practitioners need not conform their practices to a rigid medical or supported adult use model. Moreover, because Proposition 122’s regulated access model does not require psilcobyin to be administered by licensed facilitators, spritual and religious practitioners might not need to complete facilitator training or become licensed.
Critics might argue that spritual and religious practitioners should confine themselves to the unregulated communities addressed by Proposition 122’s personal use section. However, that choice should be left to spiritual and religious practitioners and their communities. The personal use section of Proposition 122 contains ambiguities that may expose spiritual and religious communities to legal risks. In contrast, their inclusion in the regulated access model may provide some degree of legitimacy and legal protection.
I invite readers to engage with the intepretations that Jon and I propose. Please remember that these analyses apply only to the text of Proposition 122 and its regulated access program. Ultimately, DORA’s rules will determine many contours of this program. The question remains, will Coloradans get involved during implementation to ensure that Proposition 122 reaches its potential?
*The views expressed on Psychedelic Week do not represent the views of POPLAR at the Petrie-Flom Center at Harvard Law School or the Florida State University College of Law. Psychedelic Week is an independent project unaffiliated with these programs and institutions.
Mason Marks, MD, JD is the Florida Bar Health Law Section Professor at the Florida State University College of Law. He is the senior fellow and project lead of the Project on Psychedelics Law and Regulation (POPLAR) at the Petrie-Flom Center at Harvard Law School and an affiliated fellow at the Information Society Project at Yale Law School. Marks teaches constitutional law, drug law, and administrative law. Before moving to Florida, he served on the Oregon Psilocybin Advisory Board where he chaired its Licensing Subcommittee. Marks has drafted drug policies for state and local lawmakers. His forthcoming book on psychedelic law and politics will be published by Yale University Press. He tweets at @MasonMarksMD and @PsychedelicWeek.
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Yah, good article, important stuff. Even with Colorado 122 I think we're still going about this all quite wrong with the frame of "let's invent whole new regulatory structures for authorized psychedelic use." I have a lot of concerns. One of them being the government regulation of religion. Catholicism, one of my home bases, has very much argued for separation of church and state, that combining them is bad democratic governing principle *and would fuck over religion*. Look at the official, state Christian churches of European countries. They're gutless, like a DMV in a cool old building. Separation of church and state protects both. I still think we probably need medical regulation via FDA (get DEA out of it). Religious legalization, with some reasonable standard of what's a religion; once that's met, government gets out of the way (except basic safety, criminal law, etc). And general decriminalization. Yeah, the FDA is flawed, but the new regulatory frameworks being implemented and proposed look worse. They're far too likely to create new, funky messes (ala Oregon 109) and seem like a possible avenue for VC, Silicon Valley types to try to "disrupt" the FDA, AMA, APA, etc and largely privitize (to their own benefit) psychedelic mental health care. I'm not clear, but it seems CO 122 has better protections on this than OR 109??