It is time to conceptualize the structure of legal access to psychedelics.
I started this blog in 2010 with the intention of laying the foundation for the development of Psychedelic Law, an examination of the unique characteristics of psychedelics, with the goal of extricating them from the antiquated “narcotics control” model to which they are subject and creating, at a minimum, emergency access to psychedelics as pharmacotherapies for the millions of people suffering from depression, anxiety, addiction and other conditions.
Despite that goal, over the last seven years I have focused mostly on the evolution of the cannabis market, not on the evolving role of psychedelics such as LSD, psilocybin, and DMT.
I recently co-organized and in September moderated a panel discussion of the legal history of psychedelics. The event is important to me personally because it gave me the opportunity to draw out from preeminent experts points that I have considered critically significant to society since at least my last two years as an undergraduate political science student in 1993-95. Moderating the discussion this past September was like exhaling after holding my breath for 20+ years.
The time has come to turn this blog in earnest to developing psychedelic law.
DISCLAIMER AND INVITATION: My background is commercial litigation – breach of contract and business torts (fraud, unfair trade practices, breach of fiduciary duty, and so on) – not Criminal Law, Food and Drug law, or even Constitutional rights. I don’t have a background in neuroscience or public health. I come to this study seeing psychedelic substances at their most basic level as a special type of consumer goods and I think in terms of the elements of the market in which they will travel. (Even if prescription medications and sacraments are not commonly characterized as “consumer goods”, differing from cosmetics, alcohol and tobacco, they are still manufactured or cultivated, bought and sold in one market or another.) There’s a lot I don’t know about a lot of things (e.g. brain function and the FDCA) but since this blog is an open-source thought experiment in how to regulate the market for substances that affect cognition, mood, personality and, most broadly, consciousness, I trust that readers will help me verify or adjust my hypotheses and let me know when they see other analyses that concur with or contradict them.
Here’s my initial treatment of the subject.
Psychedelic Law is part of the law of consciousness
Psychedelic Law (like all drug law) is a subcategory of the law of consciousness, which is a composite of numerous topics such as Mental Health Law, Constitutional Due Process, and even Contract Law (to the extent that lack of “capacity” is a basis for voiding a contract). It partakes of such fields as Health Law, Food and Drug Law (and its general category, consumer protection), Free Exercise rights (when a central religious ritual requires use of a substance that happens to be in Schedule I of the Controlled Substances Act), Criminal Law (of course), and International Law in that United Nations treaties govern the status of psychedelic substances.
To those of you familiar with the Multidisciplinary Association for Psychedelic Studies (MAPS), an incomparable pioneer in the renaissance of psychedelic research and development, my analysis is that MAPS is active now only in the first of many realms, the beginning of the journey: the domain of product development as regulated by a highly-specialized, health-focused federal administrative agency, the Food and Drug Administration. MAPS is operating in the realm of medical science, as opposed to the realm of the federal statutes and caselaw governing the sacramental use of ayahuasca and peyote (and perhaps eventually iboga) as a matter of religious freedom. In the event that MAPS obtains approval from the federal government to introduce a psychedelic substance into the market for pharmacotherapies, new realms within Psychedelic Law will open up. Psychedelics will be subject to the full scale of Health Law, such as laws of insurance coverage, accreditation and licensing of treatment providers, and tort law such as malpractice. Family law could be implicated if a court is called upon to determine whether a parent’s past or present use of psychedelics affects a custody or access determination. Local law, e.g. land use law, may be implicated when it comes to locate establishments dedicated to psychedelic use, e.g. spiritual retreats and clinics.
Psychedelics are problematic because, like cannabis, they don’t fit current paradigms
How does the recent history of legalization of cannabis for general adult use bear on Psychedelic Law?
In practice, in multiple states cannabis is an over-the-counter consumer product available like alcohol and tobacco. Cannabis legalization for general adult use uses the alcohol control model as opposed to the medical model at the root of a “medical marijuana” law.
I don’t see psychedelics such as LSD, ibogaine and DMT being available in an over-the-counter consumer market for a long time – until at least the time the dominant post-Enlightenment societies integrate norms of responsible psychedelic use. I don’t support a market model in which anyone can walk out of a 7-Eleven with a sheet of acid for unregulated use. (I suspect I’m not alone.) With the exception of the current ballot initiative in California to legalize psilocybin, psychedelic legalization has not proceeded on a civil liberties argument for the last thirty years and I have little doubt that the stigma of psychedelics is too great for any jurisdiction to allow use without a licensed or otherwise-authorized “gatekeeper,” e.g. a mental healthcare provider or an ordained shaman. In the absence of a mass movement for the legalization of particular psychedelics at the state level, the only way to increase legal access to psychedelics is to obtain FDA approval for their use as prescription medications, i.e., proceeding within the medical model.
I suspect that we may not see general, unrestricted availability of psychedelics like caffeine, energy drinks, tobacco, and alcohol for a very long time, if ever. The open question is what will society look like if/when the psychedelic experience is normalized, which I believe will require transformation of some basic beliefs about the construction of individual identify, and instead the future of legal access to psychedelics, should it come, is something we can’t imagine yet. We can only see the past and the past doesn’t tell us what will happen to our norms of consciousness and forms of social organization should psychedelic therapy or other regulated usage become available on a mass scale and the number of people undergoing psychedelic experiences increases accordingly.
Hybrid products break the regulatory mode
The experience of cannabis legalization is useful to our thought experiment because of the ways in which cannabis and the other psychedelics share the same unique qualities. First, cannabis and psychedelics are hybrid products that break existing molds of consumer products in post-industrial society. After decades of merciless suppression, multiple jurisdictions are allowing cannabis to be available in the mass consumer market of euphoriants but, while alcohol and tobacco are toxins, cannabis is a mild euphoriant that also has profound – perhaps miraculous – health benefits, and straddles the alcohol control model and the prescription medicine model. Similarly, psychedelics are hybrid products in that they are alleged to have profound if not miraculous mental health benefits but also, in some cases, have Constitutionally-protected religious uses and yet in other cases are used widely in the general populations for self-exploration or otherwise without medical authorization or other supervision. In a sense, cannabis is the first psychedelic substance to make it through the gauntlet of prohibition on the state level in the United States and at the national level in Uruguay and imminently in Canada, and because we have seen that its integration is a work in progress, we can project that we need to proceed carefully when it’s not clear what parts of the existing paradigms are appropriate for psychedelics.
Cannabis and the higher psychedelics share another profound similarity: both have been irrationally prohibited for decades without evidentiary basis. From the beginning of my time analyzing psychedelic legalization I have proceeded on the premise that cannabis legalization cannot take place without an understanding of the history of psychedelics.
On the one hand, cannabis legalization has unlocked the door to psychedelic legalization in that the horror of cannabis prohibition provides a model for understanding how a relatively benign substance with extensive therapeutic potential can be demonized, mischaracterized and criminalized. However, the movement for cannabis legalization cannot reach its goal as long as the shroud of silence remains in place. That shroud is the silence when it comes to demanding a full inquiry into how cannabis prohibition lasted so long and naming the names of the people who are responsible for it. Cannabis prohibition will not end as long as the tone of public perception is “gee, who knew that cannabis is a safe alternative to alcohol and can save lives?” Well, everyone knew. It has always been public knowledge that Nixon rejected the Shafer Commission Report and in 1988 a DEA Administrative Law Judge’s concluded that cannabis should be moved to Schedule II of the Controlled Substances Act because there was a currently accepted medical use in treatment in the United States and that there was no lack of safety for use of it under medical supervision. (Marijuana is in natural form, is one of the safest therapeutically active substances known to man.) By any measure of a rational analysis marijuana can be used safely within a supervised routine of medical care.
One reason why psychedelic prohibition continues is an evidentiary standard. Food and Drug Law began as a form of customer protection requiring first that purveyors of drugs disclose their ingredients to consumers, then that they demonstrate that the products are safe, and finally that they demonstrate efficacy in treating a particular condition, relying only on evidence generated in spectacularly expensive randomized double-blind clinical trials. As to criminal classification, the Controlled Substances Act puts upon anyone who seeks to move a psychoactive substance out of Schedule I the burden of proving that the substance should be moved.
The current round of drug prohibition is a little more than a hundred years old. It’s a very young policy in the grand scope of history. Drug prohibition is not an immutable law of nature. The FDA is also only a little more than a hundred years old; its standards for allowing access to medications in general and psychedelic substances in particular are not set in stone, delivered from on high.
It’s time to turn the conversation around as to cannabis and psychedelics. We are in a brief moment of liberation when the insanity of cannabis prohibition (it’s insane to try to ban a plant) is recognized in the mainstream media. Such moments do not last forever. There is a precious opportunity to make the point that cannabis prohibition was never an innocent mistake and neither is psychedelic prohibition. The proponents of legalization should not bear the burden of proving that psychedelics under appropriate circumstances are safe and that there is sufficient medical utility to justify legal access to them. Instead, it is the governments of the world that bear the burden of justifying absolute prohibition of substances such as ibogaine, MDMA and psilocybin, when there is anecdotal evidence that they can serve as emergency mental health interventions, especially where there are decades if not hundreds of years of human usage of the substances, and their therapeutic potential was known at the time the iron curtain of prohibition fell. There must be some level of public demand in response to which governments are obligated to shift funding from maintaining prohibition of cannabis and psychedelics to investigating claims they yield therapeutic benefits. Switching the burden of proof that way is not within the contemplation of the existing system and so the system needs to change.