Last month, voters in Colorado passed Proposition 122 — the broadest drug decriminalization measure ever approved in the United States. The Natural Medicine Health Act defined certain psychoactive compounds derived from plants and fungi as “natural medicine.” Included are psychedelics dimethyltryptamine (DMT), ibogaine, mescaline (excluding peyote), psilocybin, and psilocin, the latter two of which are found in magic mushrooms. Under this new definition, personal use, possession, growth, and transportation of these substances will be decriminalized for people at least 21 years of age and older.
Colorado is the first state to allow psychedelic-assisted therapy; in 2020, Oregon passed a ballot measure that’s sometimes described as legalizing psilocybin-assisted therapy, but is deliberately separate. The two states offer distinct windows into how efforts to decriminalize psychedelics and legalize psychedelic medicine may play out in other states. Experts say there are pitfalls and benefits to different components of each state’s approach. What is clear is that more states will be voting on these issues in the coming months and years, and — at least in some states — the therapeutic and possibly adult use of psychedelics generally, will become a legal reality. Here’s how Colorado and Oregon may pave the way for the future of psychedelics in healthcare.
In 2020, Oregon passed Ballot Measure 109, which ostensibly decriminalized the personal use of all drugs. In practice, however, that simply means these offenses are reduced to a “Class E” felony, which allows police to fine drug users. While fewer substances are included in Colorado’s proposition, it completely decriminalizes a wide swath of drugs derived from plants. The proposition’s text clearly states that the possession, growth, transportation, and sharing of plants containing DMT, psilocybin, ibogaine, and mescaline (excluding peyote) are not a violation of state law and thus can’t be punished by any means, including fines, penalties, or arrest. This is a huge boon for many supporters of criminal justice reform advocates and harm reduction efforts.
Things get more complicated with respect to adult use. Ballot measure 109 directs the Oregon Health Authority to “license and regulate the manufacturing, transportation, delivery, sale, and purchase of psilocybin products and the provision of psilocybin services.”
Mason Marks, professor of law at Florida State University, tells Inverse that under the Oregon law, all adults will be able to consume psilocybin, for any reason. That means anyone who wants to use it wouldn’t need a medical diagnosis and they wouldn’t need to use it under the care of a psychiatrist or other medical professional. Rather, they would take it under the supervision of a “psilocybin facilitator.” Marks is also the lead of the Project on Psychedelics Law and Regulation at the Petrie-Flom Center at Harvard Law School and a former member of the Oregon Psilocybin Advisory Board, which advises the Oregon Health Authority (OHA) on the creation of a statewide psilocybin industry.
While OHA hasn’t released the final rules governing the soon-to-be-established psilocybin industry, the most recent version of the proposed guidelines, released last month, “explicitly prohibit facilitators from diagnosing or treating health conditions,” Marks says.
This is quite different from how Colorado is poised to go about it. While some details will be similarly worked out by an advisory board as well as the Department of Regulatory Agencies, Proposition 122 expressly states that a Regulated Natural Medicine Access Program will be created for “licensed healing centers to administer natural medicine services.”
While the Oregon facilitators would have to go through training, the extent of the training has yet to be determined. Because the facilitators are not explicitly treating people for mental health disorders, the extent will likely be significantly less than what a psychiatrist or even licensed nurse practitioner would complete.
Indeed, Oregon’s Ballot Measure 109 explicitly states that people seeking psilocybin treatments are not “patients” but “clients,” a deliberate distinction and that facilitators can’t diagnose or treat mental health disorders.
Matthew Johnson, a professor of psychiatry and behavioral science at Johns Hopkins University who focuses on the therapeutic uses of psychedelics, tells Inverse that he sees some benefits to Colorado’s approach but also some potential pitfalls.
The fact that Oregon’s program will not explicitly be treating mental health disorders or substance use disorders somewhat assuages some of the initial concerns Johnson had about adequate facilitator training, he says. But there are other factors to consider.
He says he’d want to know if psilocybin facilitators would be doing “a credible assessment for serious psychiatric disorders,” so that people coming to facilitators for mental health treatment could be excluded as clients, as it may not be appropriate or helpful for facilitators without extensive training to be acting as de facto mental health professionals. If such screening is not done and there’s a kind of “wink and nod” that people can come to facilitators to treat mental health issues, he would find that concerning, he says. Additionally, he says, while serious physical adverse reactions to psilocybin are rare, these drugs do raise blood pressure, and people with certain conditions may experience serious side effects.
“I'm not saying a physician should necessarily be at every treatment site, but in case of emergency, how far are they from an emergency department? Is there a maximum distance one of these centers can be from a hospital?” he says. “Also, even if the facilitator is not a physician, it is still relatively safer if the person has had a physical to rule out things like severe heart disease or other disorders, including psychiatric disorders like schizophrenia. Will people be advised to or required to have any sort of such screenings, even if independent from the psychedelic session facilitator?”
Without finalized guidelines, we can’t say definitively what the answers to these questions are.
Colorado’s proposition, on the other hand, Marks says, “is really on a collision course with the FDA.” Because the FDA has not approved psilocybin to treat depression or other mental health conditions, medical professionals at “licensed healing centers” saying they do exactly that “almost obligates the FDA to intervene.”
What that intervention looks like, and how it affects services in Colorado, may determine which model other states choose to emulate when crafting similar initiatives.
Ismail L. Ali, Director of Policy and Advocacy at the Multidisciplinary Association for Psychedelic Science (MAPS), tells Inverse that he doesn’t see either the Oregon or Colorado efforts as explicitly medicalized. Instead, he argues that they both fall under the category of “adult use” because, to his knowledge, neither is “diagnosis-based,” meaning that someone may not have to have a formal diagnosis to get treated.
Indeed, Oregon was prohibited by the governing agency from requiring a diagnosis for access to treatment.
“That limitation was removed in the Colorado [proposition]…but they at least have the ability to do that— they could require medical diagnosis or require you to see a doctor before accessing psilocybin services,” Marks says.
Without seeing the guidelines that Colorado’s advisory board comes up with — the guidelines that have taken several years for Oregon to establish — it’s hard to know exactly how much a diagnosis would factor into access.
There is clear language in the Proposition that allows healing centers to be housed within existing medical facilities and protects anyone with a medical license from having that license revoked for participating in natural healing centers.
Interestingly, Colorado’s program will be regulated under Colorado’s Department of Regulatory Agencies— which is not necessarily specific to health, whereas Oregon’s is regulated by the Oregon Health Agency, which is.
Put simply, the contradictory federal and state guidelines around these initiatives mean their implementation doesn’t necessarily fit neatly in either category.
The future of psychedelic legislation
While Marks believes Oregon’s model is potentially more sustainable than Colorado’s, he does think there are positive aspects to Prop 122 that he hopes other states will similarly include in their proposed ballot measures.
For example, in Colorado, facilitators are allowed to provide in-home care for those who may not be physically able to get out to a psilocybin facilitator. There are other provisions in the Colorado proposition having to do with training programs and equity that Marks is pleased to see included in Washington State’s proposed legislation. Most of that measure is crafted in the same model as Oregon’s, but it also pulled some from Colorado. Other states may similarly pull from different parts of each proposition, but the fundamental issues of medicine, therapy, adult use, and schedule 1 drugs will all have to be contended with in some way.
Johnson admits that these are all thorny issues but says he’s happy to see how many states are getting measures on the ballot, and how much popular support there is for them. While it may not be true in Congress or the Senate, there is ideological bipartisan support for some of these efforts, especially as innovative mental health treatments.
“Sometimes I think I've woken up in some bizarro world where psychedelic medicine is the most bipartisan issue in 2022,” Johnson says. “I’ve been interviewed by Anderson Cooper and Dan Bongino [about Johnson’s research using psychedelics to treat mental health and substance use disorders], and their responses are identical. They all say, ‘God bless you. I've had mental health problems in my family, I can't tell you the suffering it's caused.’”