- Untangling Viewpoints: Getting to Yes on the Natural Medicine Health Act - October 6, 2022
- DEA Denies Soul Quest’s Religious Exemption: Impacts on the Ayahuasca Community - June 21, 2021
- DEA and the Religious Exemption: A Fox Guarding the Henhouse - October 13, 2020
October 6, 2022. November’s election is getting very interesting here in Colorado. For the second time in our nation’s history, an entire state will vote on the re-normalization of psychedelics when the Natural Medicine Health Act of 2022 appears on the statewide ballot. But the ever-present and all-pervasive culture wars on the left threaten to confuse voters and send this initiative down the flusher. In the last few weeks, several dueling editorials from several progressive players have people scratching their heads and wondering whether to vote for or against the Natural Medicine Health Act (“NMHA”).
COLORADO IS GOING TO HAVE AN OPPORTUNITY TO VOTE ON THE RE-NORMALIZATION OF PSYCHEDELICS.
The initiative, on the ballot as Proposition 122, the NMHA legalizes possession and personal use of four categories of plants and fungi capable of producing psychedelics: psilocybin (mushrooms); ibogaine (iboga); dimethyltryptamine (DMT containing plants); and mescaline (certain cacti but not peyote).
The NMHA also creates a new regulated access model allowing licensed healing centers in Colorado to provide psilocybin sessions to adults 21 years of age and older. These healing centers would be commercial endeavors, regulated by the Department of Regulatory Agencies (“DORA”), Colorado’s regulatory arm. The NMHA would also assemble an “Advisory Board” of experts in various related fields to advise DORA about this regulatory framework.
In early September, Matthew Duffy, co-founder of Denver’s Society for the Psychedelic Outreach, Reform, and Education, (“SPORE”) published an op-ed in the Denver Post urging voters to reject the NMHA. A couple of weeks later, Sean McAllister, an attorney and co-drafter of the NMHA responded briefly to SPORE’s initial op-ed in an essay published by the Chacruna Institute—followed by a sprawling, poetic, rhetoric-filled critique by Matthew Duffy on SPORE’s website providing an accounting of all that’s wrong with the NMHA.
Yesterday, October 5, a funder of the NMHA via the New Approach PAC as well as a funder of SPORE, David Bronner, replied in this essay addressing all the additional issues Duffy threw into his longer critique.
Many of us already know what can happen when the regulatory sausage-making machine gets moving. We need only look to California to get an idea of what can go wrong.
With all this back and forth, why am I writing a piece for this community of enthusiasts, advocates, activists? Because we ought to be aware of the potential issues arising out of this new law. Many of us already know what can happen when the regulatory sausage-making machine gets moving. We need only look to Prop 64 in California to get an idea of what can go wrong. This essay is my effort to untangle the concepts, assertions, accusations, and counter-accusations being traded online between these two interested parties—and my effort to search my heart and mind for my own vote. I also want to alert those of us who are committed to the safe, responsible, and legal availability of plant medicines of the need to get involved in how Prop 122, if passed, is implemented in our state—because, they say, the devil is in the details and there are plenty of details.
After taking a long, hard look at the topics these two sides have been arguing over, I have identified five concerns with the NMHA as a legal observer and commentator. These are by no means the only concerns there are and the above two are not the only perspectives that can be taken. For what it’s worth, these are the issues I find concerning:
DORA’S Authority to Regulate Personal Use
NMHA proponents have said that “No state agency can regulate the private personal possession, home cultivation, sharing, or use of these natural medicines for adults over 21,” and, “Communal healing will be immediately decriminalized by this measure. This measure protects the work of traditional medicine people and shamans from criminal prosecution and is not subject to state licensure or business regulation since there are no sales of natural psychedelic medicines.”
This is an assurance that can’t really be made so unequivocally; the language of NMHA could give DORA the power to regulate personal and communal use after the initiative passes. There is quite a bit of dispute about this point, and reasonable minds can disagree. It will come down to how this bill is implemented after passage. Here is my reasoning on why DORA might have authority to regulate personal use.
First, the entire NMHA falls under the “Professions and Occupations” section of the Colorado Revised Statutes. This is the Title under which DORA has broad powers of control, licensing, and regulation. Second, Part 104 provides DORA with broad powers of rulemaking and regulation and states DORA may “adopt, amend, and repeal rules as necessary to implement the regulated natural medicine access program and to protect the public health and safety.” Had the drafters wanted to be clearer about prohibiting DORA from having power over the personal use section, they should have instead written, “adopt, amend, and repeal rules as necessary to protect the public health and safety in implementing the regulated natural medicine access program.” The additional phrase “and to protect the public health and safety” in the final language of the NMHA is not qualified or limited to the regulated access program. Instead, it arguably extends beyond this program to the personal use exemption.
Furthermore, Part 109, Personal Use, clearly authorizes DORA to regulate personal use by starting with the phrase, “Subject to the limitations in this Article 170.” In prior versions, the opening phrase stated, “Subject to the limitations on this Part….” However, the drafters changed the language, bringing the personal use section within DORA’s authority—even if unintentionally so.
Discover the Indigenous Reciprocity Initiative of the Americas
The proponents of the NMHA have said DORA will have no authority over personal use and point to the decriminalization of cannabis by Amendment 64, where a specified amount of cannabis was no longer illegal for personal use and DORA never attempted to assert authority over the personal use of cannabis. However, the cannabis exemption was embedded in the Title 18, the Criminal Code, not in Title 12, Professions and Occupations section, and the personal use amount was predefined by Amendment 64 as one ounce or less and no more than six plants. Comparing these two different sections of very different bills for the purposes of statutory interpretation is comparing apples to oranges.
While the NMHA amends the Criminal Code to conform to the new Personal Use provision of the NMHA, ensuring DORA cannot re-criminalize personal use, nothing in the act prevents DORA from defining or constricting the personal use amount or extending its regulatory reach over unlicensed practitioners under the banner of ensuring the public health and safety. How likely it is that DORA will do either of these things is unknown. Perhaps the risk is slim. But it exists.
Separately, but relatedly, the NMHA permits DORA to create new professional categories and licenses as may be needed to implement the NMHA while simultaneously prohibiting the agency from disciplining licensed professionals who practice under the Personal Use model. On its face, that seems all well and good but I feel quite certain DORA will not sit idly by while its power to discipline licensees for behavior related to their professional conduct is enfeebled.
Vague and Potentially Discriminatory Personal Use Amount
The NMHA drafters have said, “The limit in terms of quantity is a personal possession amount, including an amount necessary to share with other adults,” and that this personal possession of an amount necessary to share is sufficiently clear for courts to discern what constitutes legal possession (for personal use) and what constitutes “possession with intent to distribute” via sale, which will remain illegal under Colorado law.
Personal use is qualified by the statutory language “an amount necessary to share with other persons twenty-one years of age or older within the context of counseling, spiritual guidance, beneficial community-based use and healing, supported use, or related services.” Proponents state that “amount necessary” will be decided by courts. It is of concern that this discretion falls not upon courts, but first upon law enforcement and prosecutors to determine what is an “amount necessary”—and is subject first to executive interpretation, and only later to judicial interpretation.
What is a private person’s “amount necessary” might be to law enforcement a crazy huge quantity of drugs.
What is a private person’s “amount necessary” might be to law enforcement a crazy huge quantity of drugs. Because we will have legal possession with intent to share co-existing with illegal possession with intent to distribute, there is a valid question as to how that is going to get implemented in a way that is not repeating discrimination against communities already disproportionately impacted by the War on Drugs. Is this real protection or a possible law enforcement nightmare? I think it important that, as white people, we probably ought to listen carefully to the concerns of our BIPOC brothers and sisters when they say this is a real issue and figure out how to deal with this squarely and fairly in the implementation phase.
Easily Skirted Limitations on Aggregation of Corporate Ownership
Proponents of the NMHA say the proposal “limits the number of licenses per company to five, ensuring there will not be any corporate takeovers or monopolies in Colorado on treatment centers, encouraging locally owned and operated clinics.”
The language states that DORA shall promulgate rules that prohibit “an individual from having a financial interest in more than five healing centers.” NMHA does not define the word “individual.”
Black’s Law Dictionary defines “individual” when used as a noun as, “denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons.”
“Healing center” is defined as “an entity licensed by the department that is organized and operated as a permitted organization.” “Permitted organization” is defined as “any legal entity registered and qualified to do business in the state of Colorado that meets the standards set by the Department.” (Emphasis added).
The proposition anticipates that healing centers will be held as companies, corporations, or entities. But companies, corporations, and entities can be owned by many individuals with fractional interests, as well as other companies, corporations, trusts and charitable organizations, not just individuals. The NMHA language uses the words “persons,” “people,” “individual” somewhat haphazardly such that we are unable to discern whether the five-healing center limitation applies to complex ownership structures in which entities are owned by other entities. This type of ambiguity could invite creative corporate structuring to work around the spirit of the restriction, which we’ve seen again and again in the regulation of cannabis in various states. How much more difficult it will be to implement the five-healing center limitation when at least some or all of these healing centers could be held by publicly-traded corporations.
As an estate planner, off the top of my head, I can think of several creative ways to get around the limitation to allow for excess corporate ownership of healing centers, including the use of trusts, foundations, and a variety of corporate forms.
Insufficient Provisions for Low Income and Indigenous People and to Ensure Economic Opportunity to Communities Who Have Been Disproportionately Impacted by the War on Drugs
The proposition requires DORA to adopt rules that do “not impose reasonable financial and logistical barriers that make obtaining a facilitator license commercially unreasonable for low-income people or other applicants.”
While these provisions are a definite improvement on Oregon’s Psilocybin Services Act, license fees alone are not the only barrier to participating in this new industry. Realistically, those first to market will generally be the most successful in the market. People of modest means are not going to be able to raise the capital necessary to get to market before some level of saturation is reached. Market dynamics will operate to exclude people of color and modest means from participation in the new industry.
No provision was made in the licensing section to provide for a certain number or percentage of licenses that must be granted to BIPOC-owned entities or people of modest means. The NMHA relies on restricting exorbitant licensing fees to provide economic opportunity to disadvantaged communities, but this provision alone will not correct for the unfairness that will naturally arise in a new psychedelic industry. A more realistic future would be the regulated access model will be dominated by market players who will open healing centers in the swankiest towns—not in areas where people who’ve been disproportionately harmed by the War on Drugs live and work.
Proponents also say the measure creates an access fund to subsidize access for low-income people and Indigenous people at licensed facilities. Assuming for a moment that low-income people and Indigenous people would ever want to set foot in a white-owned healing center—which I rather doubt—the Access Fund established in Part 106 of the NMHA can do very little to ensure that more remote communities are home to any healing centers at all, much less any that are owned by BIPOC facilitators.
The NMHA requires that licensure as a facilitator can’t be so expensive or onerous as to exclude low-income people from licensure and directs DORA to establish rules that incentivize “the provision of natural medicine services at a reduced cost to low-income individuals.” It does not provide for sliding scales per se, and DORA will determine what this provision means, who it applies to, and how it’s implemented. Again, this measure will require vigilance in implementation by many people who care and are activated to ensure all the good things the NMHA promises are truly available to our BIPOC community members.
And here is my 5th and final comment about the NMHA as a whole:
The Risk of Not Passing the NMHA is Greater than the Risk of Passing It
Grassroots organizations who oppose the NMHA seem to have at the heart of their argument that only full decriminalization of all plants and fungi (natural medicines) with no limits whatsoever is acceptable. However, their assertion that the NMHA should be withdrawn or voted down because it doesn’t go far enough is too late in the political game.
This grassroots’ position would push the Overton Window beyond what Colorado and America are ready for—it’s already maxed out with the NMHA. The right time to push the Overton Window is before and during a primary campaign where people are open to discussion of new ideas and the formulation of ballot initiatives is still in a malleable state. That does appear to have happened with the NMHA to at least some degree—by SPORE’s own admission.
SPORE and other grassroots organizations are taking a maximalist position—which is fine during negotiation because the field of possible choices is wide open and fertile. But an election is binary—it is YES or NO and the negotiation phase is over, like it or not.
The time for asking people to expand their minds is not in the middle of a general election. When there’s a reasonable compromise to be had, taking a maximalist position in the way SPORE has will no longer have the desired effect and inflexibility will only serve to give an opening to the people who would prefer to keep the War on Drugs (really, the War on People) going and to continue to allow people of color to be unjustly penalized.
SPORE may have lost Colorado the best chance for the most progressive bill anywhere in the United States.
If this measure loses by 2% as a result of SPORE’s opposition efforts, what would they have wrought? I can imagine a future in which an emerging and newly-empowered right-wing anti-plant medicine lobby (a nascent one has already formed in Colorado) gets a win under its belt and fans out to other states to do the same—of course, and ironically, in the name of saving the children. SPORE may have lost Colorado the best chance for the most progressive bill anywhere in the United States . And for what? Staking out a purely maximalist position that has zero chance of winning anywhere in the United States for two decades or more?
Or worse, a loss for the NMHA this November might open the door to other groups with less pure motives and bags full of money to come to Colorado and offer another initiative. Big IPOs with VC money like Compass Pathways, Atai Life Sciences, and MindMed could easily funnel hundreds of millions into Colorado and pass an initiative that doesn’t include a personal use exemption. (Pssst…personal use is their competitor for market share). And with every election cycle the Overton Window will skew more favorably toward psychedelic legalization, it becomes more likely a regulated access model initiative will pass, but no more likely that it will include a personal use exemption.
This is like Ralph Nader handing the election to George Bush or like Jill Stein handing the election to Trump. As bad as Gore or Clinton may have been, certainly for progressives they would have been much better than Bush or Trump. So, the adage, “Don’t let the perfect be the enemy of good,” is not just apropos. It is the ballgame.
In the end, I am a YES to the NMHA. I will vote for it and I encourage others to seriously consider a YES vote as well. In addition, I want to make sure that the implementation phase of the NMHA fulfills the spirit and promise of the proponents’ best intentions. If you choose to vote for it, and you’re in the medicine world, I urge you also to get and stay involved in the post-election implementation work. Colorado stands to remake the face of drug policy. Vote YES, then let’s work together to make it function as fairly, justly, and safely as we can.
Disclosure: I have no financial stake in any company or entity that would bias my analysis. I am a member of Chacruna’s Council for the Protection of Sacred Plants and the steward of the Psychedelic Bar Association’s Religious Use Committee. I have professional relationships with several of the drafters and proponents of the NMHA as well as with other commentators and critics of the NMHA.
Art by Mariom Luna.
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