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DC Lobbyists Pitch Massachusetts Plant-Based Psychedelic Act
DC-based New Approach PAC pitches psychedelic act to Massachusetts stakeholders convened at Boston cannabis law firm
*Updated July 19, correcting minor typographical errors and more accurately reporting remuneration possible under Colorado’s Natural Medicine Health Act.
As I publish this article, the DC-based political action committee New Approach PAC pitches its psychedelic policy to Massachusetts stakeholders at the Boston office of Vicente, a cannabis law firm. Psychedelic Week obtained an outline of the policy, which I describe below.
From 5 - 7pm Eastern tonight, lawyers and lobbyists from Vicente and New Approach are presenting their psychedelic proposal to “take feedback and ideas, and talk about next steps.” New Approach plans to test its policy through a Massachusetts voter ballot question campaign in 2024.
On July 3, Boston political strategists filed the campaign paperwork with the Secretary of the Commonwealth of Massachusetts. New Approach has a mere two weeks, until August 2, to finalize the policy and file it with the state.
On Monday, Massachusetts community groups, including Bay Staters for Natural Medicine, voiced concerns about the out-of-state PAC’s sudden appearance in Boston. They worry about New Approach’s lack of consultation with locals, the potential for the out-of-state PAC to distract from locally-developed state legislation, and the risk that given New Approach’s history with Oregon’s over-budget psilocybin program, its Massachusetts ballot campaign could produce an expensive psychedelic program that shuts locals out while costing taxpayers money.
Psychedelic Week obtained New Approach’s policy from sources familiar with the matter. Called the Plant-Based Psychedelic Substances Health Act, it borrows heavily from New Approach’s ballot initiative in Colorado, the Natural Medicine Health Act, which voters approved in November (and to a lesser extent, its Oregon campaign of 2020). But there are several important differences that I’ll discuss below.
As a bit of background, New Approach’s Oregon campaign created a system for the non-medical supported adult use of psilocybin. Reflecting its non-therapeutic nature, the Oregon ballot initiative (Measure 109) had a neutral sounding name, the Oregon Psilocybin Services Act. In the resulting regulatory rules, published in December, psilocybin professionals (called facilitators), and the centers where they work (called service centers), provide psilocybin services to clients, as opposed to psilocybin therapy. Oregon facilitators and service centers are prohibited from making medical claims or dispensing psilocybin to treat health conditions.
New Approach took a different path in Colorado, where its ballot initiative (Proposition 122) had a more medicalized title, the Natural Medicine Health Act (NMHA). Unlike Oregon’s law, it lacked restrictions on medical diagnosis and treatment. However, despite its medical-sounding name, nothing in Colorados’s law requires it to be a medical program. A governor-appointed committee, the Natural Medicine Advisory Board, is now hammering out the program rules. The extent to which they will balance medical and non-medical use is a topic of ongoing debate.
Colorado’s 2022 ballot initiative also included a personal use section that reduced criminal penalties for activities associated with five psychedelic substances, including their cultivation, sharing, and communal use. These additions were a notable departure from the Oregon model of supported adult use.
Below, I analyze New Approach’s Massachusetts proposal, comparing it to Oregon and Colorado’s ballot initiatives, pointing out concerns, and recommending improvements. I present my initial reactions and will provide more thoughtful comments as more details emerge.
The Proposed Regulation
Like Colorado’s NMHA, the proposed Massachusetts policy aims to build a regulated framework for supervised administration of psychedelics to adults 21 years of age or older. It also contains a personal use section, which would remove “criminal and civil penalties for the noncommercial, personal use and potentially cultivation within limited amounts.” Though similar to Colorado’s, the personal use section of the Massachusetts proposal is potentially narrower. Colorado law allows for home cultivation within a 12 ft x 12 ft space, whereas New Approach says its Massachusetts policy might not allow personal cultivation.
The Massachusetts proposal aims to allow “sharing of personal use amounts without remuneration and not as a part of a business promotion or other commercial activity.” In Colorado, opportunities for remunaration sparked controversy.
As enacted by voters, the original version of the NMHA allowed at least some unlicensed facilitators on the personal use side to be compensated for their services, but not for any psychedelic substances that they might provide. Shortly after the NMHA’s approval by voters, the Colorado legislature adopted an amendment from Senator Steve Fenberg, which ostensibly eliminated remuneration for some unlicensed community practitioners, including those from Indigenous, religious, and spiritual groups, while arguably retaining it for those offering harm reduction services and other forms of support.
Members of the Natural Medicine Advisory Board have argued that a lack of remuneration treats Indigenous, religious, and spiritual practitioners as inferior to medical professionals licensed under Colorado’s regulated framework. Doctors, therapists, and other healthcare providers can charge for their services. As can those providing bona-fide harm reduction (a term that remains undefined). But traditional healers, churches, and spiritual guides cannot profit from their labor, and its unclear whether they can even recoup their expenses.
New Approach should not revert to narrower, more-restrictive forms of psychedelic decriminalization. It should learn from the concerns expressed by community groups in Massachusetts and Colorado, and members of the Natural Medicine Advisory Board. New Approach’s Massachusetts policy should allow Indigenous, religious, and spiritual communities, and those providing harm reduction or other forms of support, to be compensated for their time. Its current policy would not allow such remuneration.
Incentivizing people to provide harm reduction services is good public health policy, and allowing Indigenous and traditional healers to be compensated for their labor acknowledges their value. This equitable approach to decriminalization gained the trust and support of many Colorado voters. New Approach should build upon it instead of chipping away at it.
The PAC should also revise its policies to ensure that the Massachusetts regulated program makes room for Indigenous and traditional healers who choose to become licensed in the state.
Another aspect of the proposed Massachusetts policy includes legal protections for people who administer and receive psychedelics. For instance, within a child custody battle, people would not be penalized for having used psychedelics. Further, healthcare professionals providing psychedelics presumably could not be sanctioned by state-licensing authorities.
One essential safeguard is absent from the proposal—protection for employees who use psychedelics outside of work hours. Massachusetts was one of the first states to gain this type of protection for cannabis consumers through a case called Barbuto v. Advantage Sales and Marketing. Some states are now adding legal protections for employees who use cannabis. New Approach should incorporate employee protections into its Massachusetts policy and any future state proposals.
The Psychedelic Substances
New Approach’s Massachusetts policy includes the same five substances as Colorado’s Natural Medicine Health Act: psilocybin, psilocin, dimethyltryptamine (DMT), mescaline (excluding peyote), and ibogaine. In contrast, Oregon’s law allows only the supported adult use of psilocybin.
It remains unclear whether the Massachusetts proposal would immediately decriminalize all five substances like Colorado’s law, or if only some would be decriminalized with the potential to add others at a later date. In Colorado, the regulated side of the NMHA took a staged approach. Initially, the law allowed only for psilocybin and psilocin to be offered at healing centers, with the possible addition of mescaline, ibogaine, and DMT in 2026. However, when the state legislature adopted an amendment drafted by Senator Steve Fenberg, ibogaine was fast-tracked so that it could potentially be provided by Colorado healing centers when they open in 2025. Meanwhile, the amendment retained the original timeline for consideration of mescaline and DMT. They cannot be added before 2026.
Soon, we should know more about the timing for decriminalization and supervised use proposed by New Approach’s Massachusetts policy.
Perhaps the most notable change in the Massachusetts policy is its shift from the fee-supported structures of Oregon and Colorado to a tax revenue funded psychedelic program. The fee-supported programs appear destined to fail. In Oregon, because the psilocybin program must be funded by licensing fees collected from facilitators, services centers, and manufacturers, the fees were set very high. Most service centers pay $10,000 annually and most facilitators pay $2,000 per year. These fees far exceed those paid annually by other professionals like doctors and lawyers. In Oregon, high licensing fees have prompted some aspiring psilocybin businesses to close their doors or avoid entering the industry in the first place. Consequently, there is insufficient funding to support the program’s regulation. I fear Colorado businesses face a similar fate.
New Approach’s Massachusetts proposal requires tax revenue to fund regulatory oversight of the state psychedelic program, which could be the most important change in the proposal compared to previous state ballot initiatives. Largely because Oregon could not generate enough funds from licensing fees, the program went over-budget and asked taxpayers to bail it out with $6 million in general funds.
The Massachusetts policy proposes a 15% excise tax on substance sales and up to 2% local tax on those sales. Notably, there is no mention of a tax on associated services, which will undoubtedly be the most expensive part of the program. Most experts predict an overabundance of psychedelic products because only small amounts are necessary for each client, and unlike cannabis, psychedelics tend to be consumed less frequently, which could contribute to a product surplus. Consequently, product prices will likely be low compared to the high cost of facilitator services. Imposing a sales tax on the services component of the regulated program would generate far more revenue to support the program’s operation. Even a small tax on services could generate significant funds.
The Governing Agency
In Oregon, Measure 109 tasked the Oregon Health Authority (OHA) with drafting and overseeing rules for the nascent psilocybin industry. In Colorado, Proposition 122 gave the Department of Regulatory Agencies (DORA) that responsibility. However, Senator Fenberg’s subsequent amendment distributed those responsibilities more broadly, among several agencies, including the Department of Revenue (DOR).
In Massachusetts, instead of requiring an existing agency to draft and enforce rules for the regulated psychedelic program, New Approach proposes creating an entirely new agency, the Plant-Based Psychedelic Substances Control Commission. Aside from sounding somewhat dystopian, creating this new agency could be very expensive and is likely unnecessary.
New Approach also proposes the creation of an advisory board to help its new Commission draft rules. Both Oregon and Colorado have similar boards. One potential downside is New Approach has a track record of influencing these boards and governing agencies behind the scenes to control the implementation of their policies.
In Oregon, New Approach’s sister organization the Healing Advocacy Fund worked openly, and not so openly, with the Oregon Health Authority to shape the psilocybin industry’s rules. In Colorado, the Healing Advocacy Fund allegedly helped the Governor’s office pick members of the Natural Medicine Advisory Board, excluding members of local psychedelic communities.
The Healing Advocacy Fund also has frequent meetings and communications with DORA officials. In other words, New Approach and the Healing Advocacy Fund influence all aspects of state psychedelic programs, from inception through implementation, despite frequent objections from local psychedelic communities.
It remains unclear what New Approach has in mind for the new agency it proposes, but I suspect widespread data collection and research will be part of it. Stay tuned for more information on that aspect, which escaped mention in the Massachusetts proposal.
Creating a standalone psychedelic agency could allow New Approach even more control than in previous states. New Approach and the Healing Advocacy Fund may attempt to seed the agency with staff of their choosing, and the agency could effectively become captured by lobbyists and their industry collaborators.
Massachusetts stakeholders should push back on this portion of the proposal and require the psychedelic program to be overseen by an existing state agency. One focused on supporting vulnerable communities would be a good choice. For instance, the Massachusetts Department of Mental Health certifies peer support specialists. That might not be the answer, but peer support could play an important role in a Massachusetts psychedelic program. Focusing on peer support would also acknowledge and build upon years of work by Massachusetts community groups like Bay Staters for Natural Medicine.
Practitioner and Facility Licensing
The New Approach proposal anticipates licensing “producers, centers, testing labs, and other categories to ensure access to services and approve locations for services, including approval for health facilities, hospice, and residences.”
A significant shortcoming of Oregon’s psilocybin program was its requirement that services be provided only at licensed and heavily regulated centers. Home administration was prohibited, even for individuals with disabilities or life-threatening illnesses who cannot easily travel to service centers.
Colorado’s psychedelic law improved upon Oregon’s by creating room for possible home administration, and the Massachusetts proposal appears to retain that potential flexibility. However, New Approach should go further to reduce its policy’s reliance on licensed service centers, which are the most expensive elements of Oregon and Colorado’s programs.
Having heavily regulated centers complicates psychedelic legislation, drives up costs, and decreases access for providers and clients. I encourage New Approach to focus more on public and facilitator education and training, as opposed to heavily regulating facilities.
Safety is an important consideration. But flexible safety regulations, adaptable to diverse environments, will be less expensive and more inclusive. Potential venues for psychedelic services should include diverse facilities like appropriately equipped churches and community centers, as well as hospices and personal residences.
Equitable Access to Licensing and Services
The New Approach proposal says little about equitable access to licensing and services. The outline states only that “grants for equity” could be made available. This aspect of the proposal reflects a pervasive problem with the implementation of state psychedelic programs. Advisory boards and state regulators often focus on what I call band-aid approaches to equity and affordability.
Instead of addressing the root causes of high costs and inaccessibility, such as unnecessarily complex regulation, and requirements that programs are funded by licensing fees, decision makers offer bandaids like scholarships for a small number of people or the promise of insurance coverage for psychedelic services, which is unrealistic given the Schedule I status of most psychedelics.
Colorado’s Natural Medicine Advisory Board has been going down this path. Instead of reflecting deeply on what aspects of regulation to pare back or eliminate, many are quick to suggest band-aid fixes.
To their credit, Colorado board members recently voiced this concern. Last week, a subcommittee of the Board spent about twenty minutes debating how many panic buttons a healing center should be required to install. Someone astutely pointed out that it might be unnecessary to create such a rule. The issue might be better addressed through non-binding recommendations made by other groups, such as professional organizations.
New Approach potentially made one important innovation to decrease program costs by relying on tax revenue instead of licensing fees to fund the Massachusetts program. But it should go further to ensure that rule makers seek other systemic approaches to reducing costs and promoting equity instead of band-aid approaches.
I have many other thoughts that I’ll save for another time. Stay tuned to Psychedelic Week for more coverage of New Approach’s Massachusetts ballot campaign.
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*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, administrative law, drug law, and psychedelic 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.