Massachusetts psychedelic ballot initiative faces lawmaker scrutiny, possible replacement
Massachusetts psychedelic ballot initiative faces lawmaker scrutiny, possible replacement
A legislative committee will analyze all 2024 Massachusetts ballot questions, including New Approach's psychedelic initiative. Cannabis critic Senator Jason Lewis joins committee
In 2023, Massachusetts became a battleground for psychedelic policy. Tensions flared between the New Approach PAC and local community groups such as Bay Staters for Natural Medicine, New England Veterans for Plant Medicine, and Parents for Plant Medicine.
For years, these local groups have helped decriminalize psychedelics in nine New England cities, including eight in Massachusetts and one in Maine.
Last year, New Approach, which is based in Washington, DC and led from California, arrived in Massachusetts with a psychedelic ballot initiative modeled after those it funded in Oregon and Colorado. In Massachusetts, the PAC raised $4 million to put its initiative on the 2024 ballot.
But this election year may be challenging for ballot initiatives across the board. Half the Massachusetts initiatives face legal challenges, and all ballot initiatives in the state face increased scrutiny from lawmakers.
In January, leaders of the Massachusetts House and Senate formed a special joint committee to scrutinize each ballot proposal and contemplate alternatives. This eight-member committee includes four lawmakers from each side of the state legislature.
In Massachusetts, lawmakers can decide to enact a ballot initiative as written by proponents before it goes on the ballot and reaches voters. Alternatively, lawmakers can choose to do nothing, allowing voters to decide in November. The legislature can also amend ballot initiatives or adopt substitute proposals.
The joint committee’s creation ensures New Approach’s ballot initiative will be analyzed and considered for modification or substitution.
Last week, Psychedelic Week contacted New Approach and its Massachusetts public relations firm for comment on the committee and possible substitution. But they did not respond.
Things could get interesting on the special committee because Senate President Karen Spilka recently appointed Senator Jason Lewis to participate.
In 2016, Lewis was a vocal critic of the Massachusetts marijuana initiative funded by New Approach (the PAC spent $4.35 million). Lewis chaired the Special Senate Committee on Marijuana, which drafted a 118-page report on how Massachusetts lawmakers should treat cannabis legalization.
The Committee’s conclusions from 2016 apply to New Approach’s psychedelic ballot initiative in 2024. For instance, the report said tax revenues and fees obtained by the Massachusetts marijuana program might be insufficient to cover its expenses, including costs associated with regulation, enforcement, and related services.
Concerns regarding program solvency arose recently in Oregon, where the state’s psilocybin program, supported by New Approach, nearly went bankrupt despite promises it would be self sufficient by 2023. Last year, Oregon regulators required a $3.1 million dollar taxpayer bailout to keep the program alive. They had requested more than twice that sum (over $6.5 million).
Oregon’s financial challenges should concern Lewis and other members of the special committee. The psychedelic program proposed by New Approach’s 2024 ballot initiative would likely be more expensive than Oregon’s. Instead of relying on an existing agency to regulate psychedelics, as Oregon has, it creates a new state psychedelic agency from scratch, which could be far more costly.
Lewis’s 2016 committee was charged with learning lessons from other states that had legalized marijuana such as Oregon and Colorado. In 2024, the special joint committee on ballot questions will likely study the ongoing rollout of psychedelic markets in other states.
In Oregon, what was promised as a solution to the state’s mental health crisis may be serving mostly affluent tourists from out of state. Further, high psilocybin prices and operating expenses have reportedly driven aspiring Oregon clients and businesses out of the industry and into underground markets.
In addition to studying other states, Lewis’s 2016 cannabis committee was worried about conflicts between the New Approach-funded Massachusetts marijuana law and federal drug laws. “There is considerable uncertainty regarding federal policy toward marijuana, particularly with the impending change in administration after the [2016] presidential election,” says the committee report.
That uncertainty regarding conflicts with federal law, and changing administrations, may be more relevant today regarding state psychedelic programs. Recently, I explained how state-regulated psychedelics are on a collision course with the FDA. The problem is their unprecedented blending of conventional healthcare with schedule I controlled substances, which has no parallel in state medical marijuana programs.
Nevertheless, New Approach and its sister organization the Healing Advocacy Fund appear unconcerned. They ostensibly assume federal agencies have no interest in state-regulated psychedelics, presumably because they have largely tolerated state cannabis industries for years.
Healing Advocacy Fund Senior Advisor Joshua Kappel spoke at a December 23 meeting of Colorado’s Department of Revenue. Kappel works for a cannabis law firm called Vicente, which New Approach paid $10,000 to draft its Massachusetts ballot initiative. He told Colorado regulators they shouldn’t worry about the federal government, claiming cannabis attorneys have dealt with the state and federal conflict associated with medical marijuana for decades.
Psychedelic Week contacted Kappel who responded but declined to offer comment for this article. His December comments seemingly overlook the fact that psychedelic programs established by New Approach ballot initiatives look almost nothing like medical cannabis programs. Instead, they blend psychedelics with conventional healthcare far more than cannabis industries ever have. Accordingly, assumptions that federal agencies will look the other way may be unfounded. Recent scrutiny of state cannabis regulation suggests federal intervention is a legitimate concern.
In December, the Drug Enforcement Administration (DEA) warned Georgia pharmacists not to dispense medical marijuana. Georgia’s unusual cannabis law allows conventional pharmacies to dispense marijuana. In other words, unlike other states, where patients go to dispensaries outside the healthcare system to purchase cannabis, Georgia blends conventional healthcare with cannabis, which remains a schedule I controlled substance. That drew the DEA’s attention and its December warning. Some Georgia pharmacists say the letter persuaded them to postpone or avoid dispensing cannabis.
Because they blend healthcare with schedule I drugs even further than Georgia cannabis, New Approach’s psychedelic proposals could draw greater federal scrutiny. As in Oregon and Colorado, psychedelic facilitators in Massachusetts would monitor people for hours at licensed psilocybin centers. Even Kappel acknowledges it remains unknown what consequences DEA-registered healthcare professionals might face if they actively participate in these programs. Nevertheless, he and New Approach encourage lawmakers to pursue similar therapeutic frameworks in other states, including California and Illinois.
Some states are taking concerns regarding costs and conflicts very seriously. Last year, Minnesota lawmakers formed a psychedelic task force, which analyzes how various approaches to legal reform intersect with federal laws. The task force will draft a report for Minnesota lawmakers on how different approaches might impact accessibility and conflicts with federal before they enact any psychedelic laws. On Thursday, Vermont lawmakers discussed forming a similar work group.
In Massachusetts, with Lewis on the special ballot initiative committee, lawmakers could dissect all facets of New Approach’s proposal, including its potential cost and how it intersects with federal laws. The committee will likely evaluate how possible alternatives, like those from Massachusetts Representative Nicholas Boldyga and Senator Patricia Jehlen, compare to the ballot initiative.
According to Bay Staters for Natural Medicine, voter and lawmaker support for substitution is growing. In a February 29 email to Psychedelic Week, the group said nearly “500 constituents have reached out to their lawmakers over the last month to call for substitution.”
In December, the Select Board of Provincetown, Massachusetts, partially decriminalized psychedelics and recommended replacement of New Approach’s ballot initiative with an alternative from Boldyga or Jehlen. In February, the Medford, Massachusetts City Council made similar resolutions. Bay Stater for Natural Medicine says other towns may soon follow Provincetown and Medford in asking for substitution.
Potential substitution might not be the only obstacle facing New Approach and its initiative. Three of the six current Massachusetts ballot initiatives face court battles.
The Massachusetts Restaurant Association filed suit in the state’s Supreme Judicial Cour, claiming a ballot initiative about the wages of tipped employees violates the state Constitution. The complaint alleges the initiative violates the single subject rule, which requires ballot initiative to address only one topic. Similar claims have been the downfall of previous initiatives.
In 2022, the court blocked an initiative that would have allowed Uber and Lyft to continue treating gig workers as independent contractors. This year, the same initiative resurfaced for the 2024 ballot. However, it again faces claims it violates the single subject rule.
In a third legal battle, the Fiscal Alliance Foundation filed similar complaints regarding an initiative to allow Uber and Lyft drivers to form labor unions and bargain collectively.
New Approach’s psychedelic ballot initiative is among three proposals that currently face no legal opposition. However, that could change. Bay Staters for Natural Medicine says it will explore all options to challenge what it views as the PAC’s unwelcome intrusion in Massachusetts.
*The views expressed on Psychedelic Week do not represent the views of Harvard University, POPLAR at the Petrie-Flom Center at Harvard Law School, Florida State University, or Yale University. Psychedelic Week is an independent project unaffiliated with these and other programs and institutions.
Mason Marks, MD, JD is a Visiting Professor of Law at Harvard Law School. He is also the Florida Bar Health Law Section Professor at Florida State University, 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 drug law, psychedelic law, constitutional 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.