New Year Brings New Psychedelic Laws: Psychedelic Week for January 8, 2023
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New Year Brings New Psychedelic Laws: Psychedelic Week for January 8, 2023
Washington, New York, and Illinois unveiled psychedelic laws this month. Other states have proposals in the works.
2022 was a big year for psychedelics. There were significant advancements in all areas of the field. Cities like Seattle, Washington joined the growing list of jurisdictions that are decriminalizing psychedelics. Colorado voters passed the Natural Medicine Health Act (Proposition 122), and Oregon published final rules for implementing its Psilocybin Services Act (Measure 109). Even Congress took a psychedelic turn. Plans emerged for a national psychedelics task force and congressional psychedelic caucus, and senators unveiled the Breakthrough Therapies Act.
2023 will likely be an even bigger year for psychedelics. January has already produced new laws from New York, Washington State, and Illinois. Other states like New Mexico and Vermont have proposals in the works. This week, I’ll analyze the psychedelic laws unveiled this month.
New York State Lawmakers Unveil Psychedelic Decriminalization Bill
On January 4, New York State Representative Linda B. Rosenthal unveiled a new psychedelic bill titled A00114. Representatives Karines Reyes and Jo Anne Simon are co-sponsors. Rosenthal’s bill is of the decriminalization variety. It would remove criminal penalties associated with the possession and use of certain psychedelic plants and fungi. Specifically, it would remove these substances from Schedule I of New York’s controlled substances list and create various protections for people who lawfully use them.
Unfortunately, the law uses the somewhat outdates term hallucinogen, which is often used pejoratively and is also a bit of a misnomer (since many psychedelic experiences don’t involve hallucinations). Nevertheless, when defining hallucinogens, the bill includes psilocybin, psilocin, ibogaine, dimethyltryptamine (DMT), and mescaline. Unlike other psychedelic laws that regulate or decriminalize mescaline, such as the Natural Medicine Health Act, Rosenthal’s does not require mescaline to be derived from non-peyote sources, such as the San Pedro cactus. By comparison, Colorado’s Natural Medicine Health Act, and psychedelic resolutions adopted by many cities, specify that peyote is not decriminalized. They address concerns that removing criminal penalties associated with peyote could threaten natural reserves of the slow-growing cactus and promote the appropriation of Indigenous practices that utilize it.
The scope of Rosenthal’s bill is broad. It removes criminal penalties associated with cultivating, possessing, gifting, and exchanging psychedelics, as well as penalties associated with equipment or “paraphernalia” used to cultivate or harvest them. It also removes criminal penalties associated with support services such as guiding people who consume psychedelics or providing spiritual or religious support.
Notably, Rosenthal’s bill specifically names religious use, which has largely been overlooked when drafting other psychedelic laws. For instance, Colorado’s Natural Medicine Health Act has two primary components: one regarding regulated access and one that decriminalizes personal use. Both sections can accommodate religious practitioners, but neither section specifically addresses them (instead of mentioning religious use, the Colorado’s personal use section uses the general term spiritual guidance).
Though A00114 does not remove criminal penalties associated with selling psychedelics, it says people can seek remuneration for providing support services like spiritual support and harm reduction.
Many of A0014’s legal protections are borrowed from Colorado’s Natural Medicine Health Act. For instance, Rosenthal’s bill states that using psychedelics cannot be the basis for a charge of child abuse or neglect, nor can it be the basis for restricting parents from spending time with their children, denying people access to public assistance programs, or removing their names from organ transplant lists.
The bill also protects holders of occupational licenses or certifications from being disciplined or penalized for the personal use of psychedelics. This safeguard is also borrowed from the Natural Medicine Health Act. Interestingly, New York’s bill appears to protect these professionals only from being disciplined for personal use, while Colorado’s law also protects them when providing advice or services associated with the regulated use of psychedelics.
These protections are commendable. However, other important safeguards are absent. For example, neither New York’s A00114 nor Colorado’s Natural Medicine Health Act provide general protection to employees who utilize psychedelics. These substances remain heavily stigmatized, and people who use them could be discriminated against by employers. In states where medical and adult use cannabis have been legalized, employees have been fired for using cannabis outside of work hours, even when their use did not impact their work performance.
Many employees have professional or occupational licenses, including lawyers, doctors, massage therapists, and estheticians. But it seems odd to single these professionals out for protection, while denying it to countless other employees who lack professional licenses or certifications. I suspect the goal was to limit protection to professions over whom the regulatory agency has authority. However, that doesn’t go far enough. By comparison, Washington’s new psychedelic bill, the Washington Psilocybin Services Wellness and Opportunity Act (SB 5263) provides broad employee protections.
Washington State Senator Jesse Salomon Refreshes Psilocybin Bill (SB 5263) for 2023
Washington State Senator Jesse Salomon recently unveiled a new version of his Psilocybin Services Wellness and Opportunity Act (SB 5263). You can read the full bill at WashingtonPsilocybin.org. A previous version, SB 5660, was introduced during Washington’s 2022 legislative session but did not progress beyond committee. This bill falls into the category of supported adult use, which allows clients to receive services without a medical diagnosis or prescription.
The refreshed 2023 version contains significant updates, many of which were gleaned from Oregon’s implementation of Measure 109. I’ve posted a more detailed analysis separately. But here’s an overview of significant changes.
Extended 24-month implementation period
SB 5263 extends the previous bill’s implementation period by six months, making it longer than Colorado’s but on par with Oregon’s.
Enhanced Protections for Employees and Professionals
In addition to shielding employees from being fired for utilizing psilocybin services, the updated bill protects healthcare providers from being disciplined or sanctioned for recommending psilocybin services or helping clients receive them.
Mandatory Group Administration Rules
SB 5263 requires the Washington’s Department of Health to make rules for group administration sessions. By comparison, Oregon’s Measure 109 gave the Oregon Health Authority discretion to prohibit group administration. However, in response to advisory board recommendations, and significant public input, the health authority created extensive rules for group settings.
Flexible Administration Sites
Like Colorado’s Natural Medicine Health Act, Washington’s SB 5263 allows psilocybin administration to occur outside a service center at other locations permitted by the Department of Health. Neither Colorado’s law nor SB 5263 allows for consumption in public spaces, and SB 5263 adds a prohibition on holding administration sessions in vehicles such as RVs.
Expanded Facilitator Training Requirements and License Type
For psilocybin facilitator candidates, SB 5263 increases the hours of required hands-on practicum training from 40 hours, the number required in Oregon, to 250 hours. Moreover, SB 5263 creates a new license type for facilitator trainees. Once candidates have completed core training, which consists of 120 hours of classroom-type instruction (the same as Oregon), they can apply for a facilitator trainee license. At least 48 of the 250 practicum hours must include direct co-facilitation with the supervisor.
No Dosage Limit Below Five Grams
SB 5263 prohibits the Washington Department of Health from implementing a maximum dose below 5 grams of dried psilocybe cubensis mushrooms. By comparison, the Oregon Health Authority implemented a dose limit 50 mg of isolated psilocybin.
Enhanced Client Data Protection
Maintaining client data privacy and confidentiality has become a controversial issue. To address this concern, Washington’s SB 5263 charges psilocybin facilitators with “maintaining the confidentiality of client information to the greatest extent possible.”
No Local Opt-Out Provisions
Oregon’s Measure 109 allowed cities and counties to opt-out of the regulated psilocybin program, and last November, many chose to do so. In contrast, SB 5263 follows Colorado’s example, eliminating the ability of cities and counties to opt-out and allowing only reasonable local regulations on psilocybin service centers and manufacturers.
Expanded Social Opportunity Program
The previous version of SB 5263 included a social opportunity program to encourage participation of people from low-income regions of the state. Program participants will pay reduced license fees as determined by the Department of Health. The refreshed version of Washington’s bill expands the social opportunity program to include veterans and persons who have a traditional or Indigenous history with psychedelics.
Codified Client Bill of Rights
The Oregon Psilocybin Advisory Board approved a client bill of rights that was largely adopted by the Oregon Health Authority. This bill of rights will be displayed prominently in service center locations and must be reviewed with their clients. SB 5263 codifies this bill of rights, ensuring universal rights for Washington psilocybin clients.
Washington’s new bill may undergo changes before making its way to the legislature this spring. Stay tuned to Psychedelic Week for additional updates and analysis.
Illinois Legislators Unveil New Entheogen Act
On January 6, Illinois legislators unveiled a summary of the Compassionate Use and Research of Entheogens (CURE) Act, which they quietly pre-filed last month. Though the bill’s sponsors have not made its text available, they published a description of its contents. Like Washington’s proposed bill, the Illinois act appears to fall into the supported adult use category. However, without more information, it’s difficult to say for sure, and the extent to which the bill creates a medicalized regulatory framework remains unclear. Because its name includes “research,” the act likely has features of the clinical research category. However, its summary provides no further details regarding psilocybin research.
It's notable that the bill’s title uses the term entheogens instead of psychedelics (which allows for the acronym CURE). Some believe this word is less stigmatized, carrying less baggage from the 1960s. It is also used frequently to connote a more spiritual approach to administering psychedelics. However, the bill’s summary makes no mention of spirituality or religious use.
Because the Illinois law ostensibly contains a research component, it will be important to see how the state handles client data protection. Hopefully, the act contains robust protections for client data protection and confidentiality like Oregon’s Measure 109.
The remainder of the summary is unremarkable. The act would establish the Illinois Psilocybin Advisory Board within the Department of Public Health, create a fund to support the program, and require licenses for psilocybin manufacturing, testing, and administration.
Notably, the act would also allow for the expungement of certain records concerning psilocybin possession. However, the summary provides no further details. Colorado’s Natural Medicine Health Act allows for some criminal records to be expunged. However, expungement is not mandatory nor automatic. Instead, Colorado courts have discretion to grant or deny expungement requests and the burden is on people with existing records to make those requests. Hopefully, the Illinois act includes more robust expungement requirements.
Stay tuned to Psychedelic Week for more updates and detailed analysis of 2023’s psychedelic news and legislation.
*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, and drug 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.