In this post I propose that the moment calls for safe and equitable access to psychedelics immediately – as in now, not in a year or more after a state department of health enacts regulations and issues licenses – and therefore a new form of psychedelic law reform legislation is necessary.
Three different models of legislative reform are pending in New York
Three different models of psychedelic law reform have been introduced in the State of New York: a psychedelic research bill that would create an Institute for Therapeutic Psychedelics Research in the Department of Health and facilitate research into psychedelics without limitation (i.e., it’s not a psilocybin-only bill), a psilocybin-descheduling bill (the only one of the three that corresponds to general decriminalization of a psychedelic substance), and a psilocybin-assisted therapy (“PAT”) bill, which appeared in late December.
The PAT bill, A8569, is a mixture of New York’s medical cannabis law with psilocybin substituted for cannabis (a “replace all” approach) and the Oregon/Florida/Maine/Washington etc. “psilocybin services” bill. It’s very nice see to a PAT bill in the mix now although it needs major work since the medical cannabis paradigm differs so fundamentally from a psilocybin therapy paradigm that the proposed access model doesn’t make sense. Notwithstanding the problems with the basic structure, there are other progressive aspects of the bill that provide some balance against the needlessly over-restrictive provisions imported from the medical cannabis law, including a social equity element and awareness of the need for sensitivity to cultural and other demographic differences. I’m sure that with the right mobilization the research bill and the PAT bill, as extensively amended, have a chance to go far in 2022 as the psychedelic storm continues to blast the United States.
None of the state-level reform models is adequate
However, I have a basic objection. A decriminalization system relieves individual consumers from criminal penalties or subjects them to reduced penalties, but it does not provide any structure for regulating the supply side. There are no production controls, no mandated product testing, no labeling/packaging controls, no credentialing/vetting in the case of facilitators (trip guides? healers? Love Doctors?) or the locations in which administration takes place, etc. So it seems to me.
Psychedelic legalization is necessary now. As in NOW. The PAT bills and the psychedelic research bills (see, e.g., Texas, Pennsylvania, and, in a slightly different form, New York’s A7928), require waiting for the creation of an office within the state department of health that will promulgate rules and issue licenses to players all along the supply chain to the consumer (the functional equivalent of a patient). This process takes years. Further, while the PAT access model (other than the one in New York) sets very low barriers to access it allows access only to psilocybin, and in the research bills access is limited narrowly to research subjects after a clinical trial begins and (except for the New York bill) only to psilocybin.
If the premise of legislative reform that facilitates access to psychedelic experiences is that there are severe mental health and substance abuse emergencies that psychedelics could ameliorate, then a system that does not facilitate emergency access does not make sense to me. If these are emergencies, then treat them like emergencies.
Change state law to allow immediate legal access to psychedelics at the local level
I assume that the only way to facilitate immediate access to psychedelic experiences for mental health and wellness is to grant authority under state law now to local governments to regulate the supply chain of psychedelic substances. Let local governments decide how to regulate their markets. It’s clear that many local governments are prepared to decriminalize personal possession of psychedelics and some non-commercial supply-side activity, as we see from the wave of local level-decriminalization that started in Denver in 2019 and has spread rapidly around the United States. What they can’t do is affirmatively regulate the rest of the supply side. That’s generally the domain of state law.
What I’m suggesting is something like a local level opt-in model, like what appears in cannabis legalization law (as adapted from alcohol control). Under the opt-in model, the state government issues the licenses or permits to different actors in the market (manufacturers, distributors, retailers, delivery services, warehousers, and others) but it allows a local government to refuse to permit certain licensees, in practice cannabis stores (retailers) and cannabis bars (onsite consumption), to operate within its jurisdiction. In an opt-in model, the default status is prohibition and a local government can affirmatively choose (as a result of a referendum or a local government vote) to allow the licensee category to operate. In an opt-out model, the default status is legalization and the local government must elect not to allow the licensee category to operate.
However, even if a local government opts in, it makes no practical difference until the state starts issuing licenses because under the current state legalization model, the power to issue licenses is reserved to the state, and the state regulatory authority can’t do so until it enacts regulations, creates application forms, reviews license applications, and then, after some number of years, starts issuing licenses.
What I’m proposing is to reverse the process: allow the local governments to create their own access models before the creation of the rulemaking body in the state administrative agency contemplated under the PAT laws. Go ahead and create the state-level rulemaking body as well, and when it eventually gets operational at some future date it will be in a position to learn from the experiences of the local governments, which will have been already regulating their own markets for years.
Support for this model in a version of the New York cannabis bill that didn’t pass and one that did
1. Exemption from the Penal Law where a local government has passed an ordinance
One of the battleground issues in cannabis legalization in New York was personal cultivation. The previous governor opposed it. The legislature supported it. In 2020, one version of the Marihuana Regulation and Taxation Act (the “MRTA,” the legislature’s bill) in the Senate included a fascinating mechanism for permitting home cultivation: it gave regulatory authority over home cultivation to local governments. S.1527B contained the following provision in Article 6 of the proposed new Cannabis Law: “Section 133. Personal cultivation. Notwithstanding any provision of law to the contrary, a person over the age of twenty-one shall be able to plant, cultivate, harvest, dry or process for personal use subject to the following restrictions: (a) all cultivation and processing shall be done in accordance with local ordnances….” That section went on to impose onerous restrictions on where the cannabis could be cultivated and to permit a maximum of six plants, but the key point is that, except for those two restrictions, in the first subsection the state law deferred to local governments as to whether to permit home cultivation or not by passing their own ordinances.
(Unfortunately the version of the MRTA that passed in 2021 contains a highly restrictive model of home cultivation in which decriminalization does not take effect until the state regulatory body passes regulations – the diametrically wrong approach.)
2. Licensure of a local government
As I discussed in my earlier post New York local governments as participants in the cannabis economy, the MRTA that passed in 2021 appears to contemplate that a local government can be licensed as any one of the players in the cannabis market, since the term “applicant” for a license includes “a government or governmental subdivision or agency.” I assume that means that the City of New York and any other town, city, or village could apply for a license, for example, to cultivate cannabis, sell cannabis at retail, or operate a delivery system. Why is that relevant? The super-interesting thing about local governments is that they can also issue licenses and they can contract out services to other entities, like not for profits. Could a local government get licensed for activity in the psychedelic market and subcontract out the functions of the license, for example, to manufacture or cultivation of psychedelic substances or providing psychedelic-assisted therapy? The model of local government that actually exists in the new Cannabis Law depends on creation of a state-level licensure system, so I’m extending that model by proposing that state law immediately allow local governments to issue their own licenses.
When I put those two provisions together, notwithstanding the fact that the first one didn’t become law, I come out with the conclusion that it’s within the scope of possibility that local governments, in addition to whatever they can do unilaterally to decriminalize certain non-commercial activities involving psychedelic substances, can pass their own ordinances governing organized access to psychedelic substances, including cultivation and manufacture through administration to an individual by a health care provider or otherwise adequately-qualified person. I believe that some kind of regulatory apparatus is necessary in order to control irresponsible commodification of psychedelics as soon as any reform bill passes. It can’t wait for the state. Local governments have their own medical professionals, their own health clinics, and their own first responders. They should be able to evaluate for themselves the safety profile of psychedelic substances and determine how access to psychedelics can be accomplished safely and with maximum benefit to their own populations.
if there are public health emergencies that safe and equitable access to psychedelic experiences could help ameliorate, then immediate access is necessary. I don’t see a route to immediate access other than a state law that allows local governments to permit that access to psychedelic experiences in accordance with the particular characteristics of their populations and their unique mental health care needs.
That’s the legislation I believe is needed in New York.