Senator Seeks to Overhaul Colorado Psychedelic Law, the Natural Medicine Health Act
Senator Seeks to Overhaul Colorado Psychedelic Law, the Natural Medicine Health Act
Senate President Steve Fendberg introduced SB-290 this week to amend the personal and regulated use sections of Proposition 122, which voters approved in November
*Updated January 26, 2024 regarding DORA solicitation of applications for Indigenous community work group.
On Monday, April 17th, Colorado Senate President Steve Fenberg circulated a draft of his proposed amendment to the state’s psychedelic law, the Natural Medicine Health Act (NMHA).
Fenberg initially sent the draft only to select stakeholders on Monday before distributing it more broadly on Tuesday. The Senate Finance Committee will discuss the proposal on Thursday afternoon.
The bill, SB-290, makes sweeping changes to the NMHA, which Colorado voters approved as a ballot initiative (Proposition 122) last November. The NMHA has two primary parts. Its personal use section removed criminal penalties associated with growing, possessing, consuming, and sharing five psychedelic substances (psilocybin, psilocin, mescaline, ibogaine, and dimethyltryptamine).
The regulated use section sets up a legal framework for supervised use of only psilocybin and psilocin at licensed “healing centers.” The remaining three psychedelics (mescaline, ibogaine, and dimethyltryptamine) could be added to the regulated program after June 1, 2026.
Fenberg’s proposed overhaul of the Act was months in the making. But the Senator was tight lipped about its details until this week. He first discussed his amendment at a February 13th town hall meeting in Boulder, Colorado. During this event, where Fenberg was joined by Representative Judy Amabile (a likely co-sponsor of the bill), he outlined his plans in broad strokes while providing few details.
About six weeks later, on March 31st, Fenberg held an online stakeholder forum on his motivations for the bill, where he invited questions. He held a second stakeholder forum this afternoon but took no questions.
Fenberg’s lengthy 87-page bill, released in draft form on Monday (the NMHA was 18 pages long), makes significant changes to both the personal and regulated use sections of the NMHA. These changes are too numerous to address in a single article. Here I’ll discuss seven important changes (and provide additional updates in the coming days).
A few proposed changes represent clear improvements to the original text of the NMHA. Others appear to contradict the voters’ will, potentially recriminalizing some psychedelic-related activities. Some changes appear to add unnecessary complexity and potential for confusion.
Here are seven significant changes that Fenberg’s bill would make to the NMHA:
Establishes Indigenous community working group
One notable improvement to the bill updates its legislative declarations (Section 12-170-102). Fenberg added two statements regarding Indigenous people and communities. One acknowledges the harms the NMHA could cause. It reads as follows: “Considerable harm may occur to Indigenous people, communities, cultures, and religions if natural medicine is overly commodified, commercialized, and exploited in a manner that results in the erasure of important cultural and religious context.” A second statement says that Indigenous communities may be harmed if healing centers utilize psychedelics in ways that misappropriate or exploit Indigenous cultures and religions.
In addition to these statements, Section 12-170-107 of Fenberg’s bill establishes an Indigenous community working group “for the purpose of engaging and creating dialogue to identify issues related to the commercialization of natural medicine,” which may impact, “Indigenous people, communities, cultures, and religions.”
Establishing this working group and respecting Indigenous people and practices is important. They were largely overlooked during the recent implementation of Measure 109 in Oregon (the Oregon Psilocybin Services Act). However, it remains to be seen whether these statements are merely aspirational. Update: In July of 2023, DORA said it hoped to form the Indigenous community working group by August of 2023. However, in January 2024, the working group has not yet been formed.
One substantive addition addresses the misappropriation or exploitation of Indigenous “people, communities, cultures, and religions” through advertising for natural medicine services. That an important addition considering the history of exploiting these communities through branding and advertising (for instance in the branding of sports teams). However, far more is necessary to achieve the ambitious goals of Fenberg’s amended NMHA declarations.
One of Fendberg’s most significant changes affects personal and community use of psychedelics and appears to frustrate the goal of avoiding harm to Indigenous communities. Fenberg’s bill prohibits unregulated psychedelic community leaders from being compensated for their time and services.
Prohibits leaders of community psychedelic services from being compensated for their time or reimbursed for their expenses
As approved by voters, the NMHA allows psychedelic communities, which could take many forms (from churches to social clubs), to produce, possess, consume, and share five psychedelic substances. Consequently, under current state law, these communities can legally use psychedelics for a variety of purposes, including “counseling, spiritual guidance, beneficial community-based use and healing, supported use, or related services” (Section 12-170-109). This broad definition of personal use encompasses just about everything, such as church services, social events, community healing, harm reduction, writing retreats, and other activities aimed at boosting creativity or exploring religion, nature, consciousness, or spirituality.
The language of the NMHA prohibited those leading these unregulated group services from receiving payment for substances they provide for community members. However, the ballot initiative ostensibly allowed them to receive compensation for their time and services. Section 12-170-109 (Subsection 8) reads, “[t]his provision does not preclude . . . payment for bona fide harm reduction services, bona fide therapy services, or other bona fide support services.”
Admittedly, these are among the more poorly drafted sections of the NMHA, which are open to some interpretation. However, they are situated within the personal use section, and they appear to allow people leading unregulated group ceremonies to receive compensation for their time and services, but not for any psychedelic substances they provide, which must be donated. However, Fenberg’s amendment would prohibit all forms of compensation for services offered outside of the regulated natural medicine program.
Prohibiting community groups from being compensated for the services they provide is potentially problematic, in part because it arguably violates the will of Colorado voters. Prohibiting people from being compensated for unregulated services might push those services further underground, which could paradoxically make them less safe. Importantly, prohibiting communities from being compensated for their services, arguably contradicts the mandate of Fenberg’s bill to avoid harming Indigenous communities and exploiting their traditional practices.
Though leaders of Indigenous ceremonies often receive no financial compensation for their services, they may receive other forms of remuneration such as food, gifts, or reimbursement for gas required to travel to ceremonies. However, Fenberg’s bill would eliminate that possibility. Further, it would expand the definition of remuneration to include “anything of value,” including gifts, gas money, food, and even personal favors.
One might argue that because voters approved the NMHA with provisions allowing leaders of both licensed and unlicensed (personal use) services to be compensated, Fenberg’s move to prohibit reimbursement for unlicensed services discriminates against Indigenous communities, psychedelic churches, and others whose services fall within the definition of personal use.
Clarifies the term “natural medicine” to exclude synthetic substances and their analogs
In the original NMHA, the definition of natural medicine is a bit unclear. It says, “natural medicine” includes five psychedelic substances “in any form,” which could be interpreted to include synthetic versions. However, Fenberg’s bill says “natural medicine” does not include synthetic substances or their analogs, subtle variations in their chemical structures.
Fenberg’s bill also prohibits creating derivatives of naturally occurring compounds “using chemical synthesis, chemical modification, or chemical conversion.” This provision is likely intended to prohibit the production of psychedelics from non-psychoactive starting materials. However, it could be interpreted broadly to include common practices like Lemon Tekking, where people soak mushrooms in lemon juice, which reportedly converts psilocybin to psilocin, increasing bioavailability.
Potentially accelerates the timeline for making ibogaine available through the regulated program
As approved by voters, the NMHA legalized the supervised use of psilocybin and psilocin at licensed healing centers. It also created the option for the Natural Medicine Advisory Board (the “Board”) and the Department of Regulatory Agencies (DORA) to approve the addition of ibogaine, mescaline, and dimethyltryptamine after June 1, 2026.
Fenberg’s bill would potentially accelerate the timeline for adding ibogaine to the regulated program, allowing it to be included at any time, if recommended by DORA and the Board.
It’s a bit strange for Fenberg to prioritize the availability of ibogaine over mescaline and dimethyltryptamine. Ibogaine is produced by the iboga tree, native to Gabon, in Central Africa. Practitioners of the Bwiti religion use it in healing and religious ceremonies, and the substance shows promise for alleviating symptoms of addiction.
Ibogaine could help address Colorado’s overdose crisis. However, ibogaine is known for its risk of heart-related adverse events, including heart failure, potentially resulting in death. Consequently, it is often recommended that ibogaine be administered under medical supervision.
Though it might make sense to include ibogaine within Colorado’s regulated program, it’s unclear why Fenberg chose to prioritize it over other substances. Why not allow all three substances to be included once recommended and approved by the Board and governing agency?
Splits the existing healing center license type into four separate licenses
The NMHA approved by voters mandates a single license for healing centers, which are broadly defined. Currently, healing centers are organizations that the state permits to engage in a long list of activities related to natural medicines, including their acquisition, possession, cultivation, manufacturing, delivery, transfer, transport, supply, sale, and dispensation.
In this respect, the licensing system approved by voters is relatively simple. Any entity planning to operate within the regulated system need only apply for a single license. This approach could be convenient for small businesses who plan to cultivate and administer their own products, including churches and other spiritual groups.
Fenberg’s bill would make the licensing system far more complex. It divides the privileges conferred by the NMHA’s healing center license among four separate license types. They would include cultivation, product manufacturing, testing, and healing center licenses.
Eliminates the possibility of psychedelic retail stores
In December, Oregon attorney Jon Dennis and I observed that the NMHA’s broad definition of healing center could encompass psychedelic retail stores or “dispensaries.” Though some find this means of providing psychedelics objectionable, it is utilized in the Netherlands and parts of Canada. Of course, cannabis dispensaries are also common in over half the U.S. states.
As approved by voters, the NMHA does not require healing centers to provide psychedelic preparation, administration, or integration sessions (see Section 12-170-103). In other words, healing centers could sell psychedelics over the counter or deliver them to people’s homes.
Fenberg’s bill eliminates that possibility. It limits healing centers to providing and supervising natural medicine services, which must include sessions focused on preparation, administration, and integration.
Extends agency deadline for accepting and reviewing business licenses
The original NMHA requires DORA to start accepting license applications no later than September 30, 2024. Fenberg’s bill extends that deadline by three months, to December 31, 2024.
There are many other proposed changes in Fenberg’s NMHA amendment. They address funding, definitions, disciplinary action for licensed facilitators, criminal penalties for unlicensed activities, and requirements for data collection and client confidentiality. I’ll provide additional commentary shortly.
*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 the Florida State University College of Law. 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.