- Why Colorado’s Natural Medicine Health Act is the Right Measure to Access Natural Psychedelic Medicine: Responding to Critics of NMHA - September 18, 2022
- Psilocybin Mushroom Policy Review Panel: 2021 Comprehensive Report - November 10, 2021
- Controversies Around California’s Psychedelic Decriminalization Law Senate Bill 519 - July 29, 2021
Now, the California legislature is on the verge of becoming the first legislative body to fully decriminalize several psychedelic substances.
The psychedelic revolution is in full swing. Starting with Denver, Colorado in May 2019, several cities in the United States have decriminalized various activities around psychedelics, including Oakland and Santa Cruz, California, Ann Arbor, Michigan, Washington DC, and three cities in Massachusetts (Cambridge, Northampton, and Somerville). In addition, in November 2020, Oregon voters approved a citizen-petitioned ballot initiative to allow adults access to psilocybin mushrooms in a controlled setting. Now, the California legislature is on the verge of becoming the first legislative body to fully decriminalize several psychedelic substances. As explained here, the proposed law is groundbreaking, but has faced several challenges and amendments so far, and some advocates have decided the amendments are unpalatable.
In February 2021, California state Senator Scott Wiener (D – San Francisco) introduced Senate Bill 519 (“SB 519”), which would decriminalize the possession, personal use, and social sharing of small amounts of several psychedelics. As originally introduced, SB 519 would have decriminalized psilocybin, psilocyn, non-peyote derived mescaline, MDMA, LSD, ketamine, DMT, and ibogaine. Peyote-derived mescaline was specifically excluded from the list of decriminalized substances out of deference to the Native American community and given peyote’s threatened status and dwindling supply, and given the historical relationship of Native Americans to peyote. Ketamine was removed from the list of decriminalized substances in the California Assembly Public Safety Committee, with opponents pointing to ketamine’s use as date-rape drug and its existing availability by prescription.
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In addition to decriminalizing personal possession, the initial draft of SB 519 decriminalized “social sharing.” Social sharing was defined as “giving away or consensual administration [of the decriminalized psychedelics], by a person 21 years or older, to another person 21 years or older, not for financial gain, in the context of group counseling, spiritual guidance, community-based healing, or related services.” Financial gain was defined as the “receipt of money or other valuable consideration in exchange for the item being shared.” The definition of financial gain excluded reasonable fees for “counseling, spiritual guidance, or related services” that are provided in conjunction with the decriminalized psychedelic. The text of the bill is available here.
The concept of social sharing or decriminalized shared use is essential in psychedelic policy reform for several reasons. First, simple decriminalization for personal possession is insufficient to protect the most common dynamic of psychedelic use: a small group of people sharing psychedelics, often with a guide or group leader facilitating the experience. In California, it is a crime punishable with three to five years in prison to give away or furnish another person a controlled substance, even when no money changes hands (see, California Health and Safety Code §11352). Excluding group use puts community healing ceremonies at risk of being criminalized, despite often being a safe container for such use. While many people believe that the First Amendment protections around religious freedom, and their California analogues, protect religious practices involving psychedelics, the law in California remains unsettled and has not been clearly defined by Courts or the legislature (e.g., Background Paper on Religious Liberty in California.) As a result, without some provision for social sharing or group use in SB 519, core aspects of psychedelic use and culture would remain unprotected.
The social sharing provisions turned out to be controversial. Opponents believe that the social sharing provisions are just a trojan horse for unregulated distribution and use. In fact, these concerns might have some legitimacy. Since passage of the bill by the California Senate, several would-be entrepreneurs contacted this author looking to explore ways to commercialize activities around psychedelics based on the protections in SB 519. These entrepreneurs felt they could set up businesses based on the financial gain definitions, such as charging for counseling or guidance services and giving psychedelics away for free. According to Senator Wiener’s office, other legislators in the Assembly worried the social sharing provisions would lead to unlimited and unregulated distribution, such as handing out MDMA at raves or in recreational settings.
In response to these concerns, Senator Wiener proposed to amend the bill to remove the concept of social sharing. In its place, the bill now says that adults are not prohibited from “giving away without financial gain” an “allowable amount” of the covered psychedelic substances (LSD, ibogaine, DMT, psilocybin/psilocyn, mescaline, and MDMA). The definition of financial gain has been removed, which previously suggested that payment for related services associated with sharing psychedelics was ok. If passed in this form, the avenues for pursuing a business based on this decriminalization would be more difficult, if not non-existent, given the broad prohibition on financial gain from sharing psychedelics.
Senator Wiener’s office believed that, without possession limits, the bill would likely amended in hostile ways in the Assembly.
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The amendments around social sharing also addressed another concern of some critics: The initial draft did not have specific possession limits on these substances. Senator Wiener’s office believed that, without possession limits, the bill would likely amended in hostile ways in the Assembly. As a result, the following possession limits or “allowable amounts,” were added:
- DMT – 2 grams
- Ibogaine – 15 grams
- LSD – 0.01 grams
- Psilocybin – 2 grams or 4 ounces of plant or fungal matter
- Psilocyn – 2 grams or 4 ounces of plant or fungal matter
- MDMA – 4 grams
- Mescaline – 4 grams
It is notable that the current draft allows these possession limits to be aggregated. For example, if an adult has five friends at their house—so, six people total—the allowable amount would be aggregated for six people. The current draft says the “allowable amount” includes the “aggregate allowable amounts per person for use in the context of beneficial community use.” This creates another unclear and vague term of “beneficial community use,” but it seems intended, again, to at least cast some shade of protections on spiritual and group mental health practices, such as ayahuasca circles or psychedelic-assisted therapy.
Some reform advocates were disappointed with this concession. The imposition of possession limit amounts led Decriminalize Nature (“DN”) to withdraw their support for the bill (see Ritika Dubey, Advocacy Group Asks to Delay California Psychedelics Bill until 2022). DN now appears to be neutral on the bill. DN had strong words for the compromise, suggesting it was the slow road to commercialization and that the continued criminalization of larger amounts of psychedelics would disproportionately affect people of color. Specifically, DN stated the following on its Facebook page:
By setting limits on amounts for personal use, and by pushing legalization permitting at the state level, it kills potential for emergence of local economies to thrive and compete by setting limits on regular people and by making it too difficult to compete with deep pocketed investors in a highly complex state permitting process. Does this strategy sound familiar? Yes, it’s the same playbook as happened with cannabis, including Prop 64 in CA. Limit amounts for common people in community, while setting no limits for extractive capital. Neither food nor alcohol have personal limits, so why should our plant allies? We honor the courage of Senator Scott Wiener for sponsoring SB519, and we’re hopeful he’ll stand with the us to protect the sacred and the people’s rights to plant medicine without limits. People before profits. Community before corporations. Human-based economics before extractive capitalism.
This author also argued in favor of no possession limits on SB 519, noting that the Denver decriminalization of psilocybin did not contain a limit on quantity. What worries activists is that, if private personal possession limits are set, by implication, if an access model is ever created, one may then need a license to produce, possess, or share any amounts above the default personal possession amounts. This is what happened with cannabis in many states. First, caregivers and home growers were allowed to cultivate limited amounts. Eventually, regulatory models were hoisted on top of those personal possession amounts and required state licensing for larger operations. In Colorado, for example, cannabis home-growers are now limited to growing no more than 12 plant in their homes, and caregivers are limited to 99 plants. For any cannabis plot with over 12 plants in Colorado, you are required to rent or own a commercially-zoned property and have local and/or state permits for these operations. So, DN’s slippery slope concerns certainly have a basis, but there is nothing in the current proposal that creates any specific regulatory system around psychedelics. However, DN has also argued that there are allegedly hidden motives behind the proposed changes by Sen. Wiener’s; these aspersions have been made without any evidence, and contradict Sen. Wiener’s own recommendations.
Other policy reform leaders have supported the changes to SB 519 and pushed back on DN’s concerns. David Bronner published a response to DN’s criticisms, noting the following:
We are navigating the real terrain that Senator Wiener communicated we had to. Rather than accept reality and navigate it, DN chose to grandstand and posture so they don’t have to make the hard compromises and choices to get this over the finish line. They’ve also been spinning off-base conspiracy theories that we are trying to monopolize and profit off medicine, … rather than accept this, DN leadership threw a social media tantrum and accused me of trying to monopolize and profit off peyote. In both cases it is deflection from reality and false. If Senator Wiener saw merit in delaying and holding out for no limits then we would have followed him on that; but insofar as he said there’s no other way, then we followed his expertise, experience, and leadership. And we are preserving the core goal of protecting group ceremonial healing, and protecting the production, transport, and gifting of the quantities of medicine involved.
In addition to the political realities argument of Bronner, it is true that, without specific limits, adults will not necessarily know if they are compliant with the law. Providing a specific limit creates certainty for people using these substances to know specifically what quantities are allowed. Because distribution laws talk in terms of possession with intent to distribute, without possession limits someone innocently possessing a relatively large quantity of psychedelics, perhaps after a harvest of psilocybin, would be charged with possession with intent to distribute in the absence of a possession limit. While this author prefers higher limits thresholds or no limits at all, it is important to remember the aggregate limit definitions in the current draft of SB 510 allow adults to possess these small amounts per person for “beneficial community” use. This creates a broad exception to the personal possession limits that should protect many people engaged in community use.
SB 519 will address possible regulatory models, but that discussion has essentially been tabled for another day. SB 519 creates a state task force to study the options around further regulation leading toward some type of access system. Under the proposal, the State Department of Public Health would convene a working group to produce recommendations on a regulatory system for equitable access. The task force will also produce recommendations around education, harm reduction, and crisis response. The workgroup’s recommendations must be completed by January 1, 2024. The proponents view this work group as the forum where difficult questions around commercialization and equitable access to psychedelics can be addressed. So, while this author is sympathetic to DN’s concerns, it appears the difficult topics of access, commercialization, and regulation can be tackled by this task force in the future.
Next, the initial draft included provisions for automatic expungement of the records of prior convictions for these substances and adjusting sentences for those still caught in the system for these charges. However, these provisions were amended out of the bill on the Senate floor based on a concern about the fiscal impact of these provisions. This is certainly disappointing for social justice advocates, as expungement of prior convictions, releasing drug war prisoners, and making reparations for past injustices should be central to our reform work. However, it is important to note in California that misdemeanor drug possession convictions are already able to be expunged, but it is not an automatic process. Reform advocates are being told by Senator Wiener’s office these compromises are necessary to achieve passage of the bill.
If this law passes, there are many difficult discussions still to have, as noted, around social sharing, communal use, health equity, and social justice issues.
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SB 519 passed the California Senate on June 1, 2021. SB 519 has also passed several committees in the Assembly, including the Public Safety Committee and the Health Committee. Next up will be the Next up will be the Assembly Appropriations Committee in late August. If successfully advanced from there, the bill will have until the end of the two-year legislative session, in 2022, to pass. Governor Gavin Newsom has not stated a public position on the bill at this time. Many in the psychedelic reform community are thirsty for the passage of SB 519. Even in its current, perhaps watered-down form, it would be a historic achievement: decriminalizing seven psychedelic substances simultaneously, without requiring the time and expense of an activist-led ballot initiative, authorizing beneficial communal use, and convening a task force to study potential future regulation. SB 519 has allowed the reform community and policy makers to focus on important aspects of the discussion. If this law passes, there are many difficult discussions still to have, as noted, around social sharing, communal use, health equity, and social justice issues. All of this shows the psychedelic reform community is on the verge of a major victory—or setback, if you agree with the critics—or some combination of both.
Art by Trey Brasher.
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