Last month marked one year since Denver passed the nation’s first-ever decriminalization measure for psilocybin. Thanks to voters, Denver police are required to deprioritize psilocybin enforcement efforts.
The law doesn’t legalize psilocybin. Mere possession of small amounts of psilocybin is unlikely to lead to prosecution, but it still could happen. However, selling it can absolutely lead to legal problems.
To date, a year later, there is no evidence that decriminalization has caused social problems in the Mile High City.
A Journey Toward Acceptance
Since Denver’s historic vote, municipalities across the country have followed with similar measures. Oakland and Santa Cruz took things even further, and decriminalized other psychedelic substances, like ayahuasca and peyote. In addition, Oakland activists are crafting a proposal that would permit limited retail commercial activity for such substances.
In Oregon, state activists appear to be close to fulfilling the requirements for placing a psilocybin legalization bill on the ballot in November. If passed, the bill will permit psilocybin for therapeutic uses. Activists in Washington, DC are close to gaining enough signatures to place a measure on the November ballot that would decriminalize various psychedelics, including ibogaine, dimethyltryptamine, mescaline, and psilocybin. Meanwhile, three state legislatures are considering bills aimed at changing the legal status of several psychedelics.
David Bronner, the CEO of the soap company Dr. Bronner’s, has devoted at least $1 million of his company’s money towards decriminalization and legalization efforts. He told Marijuana Moment that the Denver vote, “showed that it’s now politically possible to win our right to live-saving psychedelic medicine.” Denver voters’ endorsement of psilocybin, he said, “set a good precedent of talking about psychedelic medicine in the healing therapeutic frame, with a strong educational component.”
It is no stretch to say a movement is afoot. After all, cannabis legalization began with decriminalization measures. Those measures became a movement that led us to today’s widespread adoption: cannabis is legal in 33 states and the District of Columbia.
We believe initiatives to decriminalize and legalize psychedelics will increase significantly in state and local jurisdictions across the country. As with cannabis, the engine behind the movement finds deep roots in medicine.
The Controlled Substances Act
After President Richard Nixon signed the Controlled Substances Act (CSA) in 1970, the Drug Enforcement Agency (DEA) began to formally categorize drugs into “schedules.” There are two questions that are supposed to serve as foundational guides for the regulators in charge of scheduling drugs: (1) does the substance have medical value; and (2) does the substance have the potential for abuse. Schedule I is supposed to be reserved for substances that have “no currently accepted medical use and a have a high potential for abuse,” and currently includes heroin, LSD, and marijuana; Schedule II contains substances that are determined to have “a high potential for abuse, with use potentially leading to severe psychological or physical dependence,” and includes such substances as morphine, amphetamines, and cocaine (yes, you can get a prescription for cocaine); Schedule III contains substances with “a moderate to low potential for physical and psychological dependence,” including codeine, ketamine, and anabolic steroids; Schedule IV contains substances “with a low potential for abuse and low risk of dependence,” such as Tramadol, Ambien, and Xanax (which, considering how easily one can become addicted to benzodiazepines, is truly insane); and Schedule V covers substances “with lower potential for abuse than Schedule IV and consist of preparations containing limited quantities of certain narcotics like Lyrica, Lomotil, and cough syrups with less than 200mg of codeine per 100ml.”
Irony abounds. LSD and psilocybin have been demonstrated to have no addictive potential in study after study, while many of the opiates in Schedule II have decimated large swaths of this country, and people die daily from benzodiazepine (Schedule IV) withdrawal. And of course, there is marijuana, whose rise to legality in states across the country stems from its medical potential (not to mention the fact that its synthetic identical twin, Marinol, is a Schedule III substance). All states with legal recreational marijuana regimes today first offered legal sales for medical patients, and many states that do not allow recreational sales yet, such as Pennsylvania, Utah, and Oklahoma, do permit medical sales.
Meanwhile, prior to being classified as a Schedule I drug by DEA, psilocybin received enormous attention from medical professionals. Research began after mushroom enthusiast R. Gordon Wasson encountered psychoactive mushrooms in Mexico, and brought back a sample to send to Albert Hoffman, who discovered LSD in his Swiss laboratory in 1938. Upon receiving the mushrooms from Wasson, Hoffman isolated the psilocybin and created a drug in his lab at Sandoz Pharmaceuticals.
During the 1950s and 1960s, researchers administered thousands of doses of psilocybin to patients suffering a variety of conditions, including alcoholism, schizophrenia, autism spectrum disorders, obsessive-compulsive disorder, and depression.
One of the truly terrible effects of the CSA was the complete termination of numerous research programs exploring the properties of psychedelic substances including LSD, mescaline, and psilocybin. Researchers in the US conducted no human studies during the entirety of the 1970s and 1980s.
Luckily, several small research programs began during the 1990s, and continue today. Johns Hopkins University’s Center for Psychedelic and Consciousness Research is at the forefront. Based on its research triumphs, a team of Hopkins psychiatric researchers called for the Food and Drug Administration (FDA) to remove psilocybin from Schedule I.
FDA has opened the door to psilocybin, if only a crack. COMPASS Pathways, a research institution studying mental health, received “breakthrough therapy” designation in 2018 by the FDA for psilocybin therapy for treatment-resistant depression.
Still, most research is conducted by nonprofit organizations like the Multidisciplinary Association for Psychedelic Studies (MAPS) and the Beckley Foundation. Due to the difficulty of gaining federal regulatory approval for research into possible beneficial aspects of Schedule I drugs, most academic and government institutions in the United States do not devote substantial resources to the study of psychedelics.
Several companies have announced plans to explore commercial applications for psilocybin. Sträva Craft Coffee, a Denver coffee company that offers CBD-infused coffee products, announced last year that it was examining combining micro-doses of psilocybin with its products. Denver law doesn’t permit such an enterprise to operate legally. Sträva is just readying itself for the future.
An Oregon start-up called Silo Wellness announced the development of a psilocybin nasal spray in December. The company is manufacturing the product in Jamaica, where psilocybin is legal.
Ongoing Legal Stumbling Blocks
Nonetheless, outside of a few cities, psilocybin remains illegal across the United States. A psilocybin arrest could be treated just as harshly in most places as an arrest for heroin. Convictions for selling psilocybin can lead to decades in prison. And of course, regardless of what voters decide in municipalities across the nation, like marijuana, psilocybin remains illegal under federal law.
Psilocybin’s unfortunate legal status in the United States is not mirrored worldwide.
In Austria, possession was decriminalized in 2016, and cultivation is legal, with some caveats. The general public can purchase a “grow kit” in the country or online. The mushrooms themselves are not illegal in Brazil, although the isolated psychedelic compounds, psilocybin and psilocin are. In the British Virgin Islands, it is legal to possess and consume psilocybin mushrooms. They have never been illegal in Jamaica, and are widely available in the country. Consumption of psilocybin mushrooms is decriminalized in Spain and Portugal. In the Netherlands “truffles,” which are fungi that grow underground and contain psilocybin and psilocin, are legal. Traditional psychedelic mushrooms, on the other hand, are not.
Psychedelic substances like psilocybin offer enormous possibilities for medical researchers and patients. As discussed, prior to the CSA, psychiatric and other researchers viewed them as powerful tools with exciting possibilities.
The classification of substances like psilocybin as Schedule I drugs hobbled research into an entire class of potent medical tools. Simply consider one specific condition: depression. Psilocybin treatments have demonstrated incredible, clinically proven results. We believe many people would be alive today if physicians and researchers could have addressed their patients’ conditions with therapies and programs incorporating psilocybin and other psychedelic compounds into treatment regimes. Such substances have the potential to benefit patients suffering from dozens of other conditions.
Considering the fact that DEA still views marijuana as a Schedule I substance, we believe the chances are slim that the agency will soon remove psilocybin and other psychedelic substances from the schedule.
Which leads us to strategy. As we know, marijuana remains a Schedule I drug; yet it is widely available, and legal under many state’s law, in jurisdictions from Maine to California. In a nutshell, the only reason cannabis sales take place in dispensaries in Las Vegas and Boston is because the federal government decided to look the other way.
Power To The People
The federal government’s hands-off approach is the direct result of years of toil on the part of activists. Every small step forward involved petitions, public education, legal engagement, and lobbying. As states first passed medical marijuana regulatory frameworks, and then embraced recreational legal sales, federal regulators stood on the sidelines. Public support for legal cannabis, as reflected in numerous polls and the endorsement of ballot initiatives by voters, played an important role.
Activism was essential for the dramatic evolution of cannabis’s profile in the United States. In just 24 years, public support for legalization went from 25% in 1995 to 66% in 2019, according to Gallup polls. The first Gallup poll addressing legal cannabis, in 1969, found only 12% support.
Marijuana’s continually improving profile among citizens hinges, at least in part, on the aftermath of legalization in different states. Legal cannabis did not lead to alarming social problems in Colorado, Massachusetts, or the other states with voter-approved sales. Rather, the most dramatic social effect has been increased tax revenues to municipalities and states.
We believe psilocybin decriminalization will forge a similar path.
Psilocybin is not addictive. Its toxicity rate is extremely low — a 2017 report by the Global Drug Survey found that out of more than 12,000 people who used psilocybin, only 0.2% required emergency medical treatment (and these admissions were related to overwhelming mental effects, not for life-threatening overdoses), a rate that is five times lower than for MDMA and cocaine. Indeed, a 2011 study published in the Journal of Regulatory Toxicology and Pharmacology concluded that “the use of magic mushrooms is relatively safe as only few and relatively mild adverse effects have been reported.”
As patients discover profound relief for things like depression, while at the same time expanded use of psilocybin fails to detract from social wellness, the public’s comfort with decriminalization and legalization will grow.
But this won’t happen in a vacuum. For now, psilocybin is merely decriminalized in three municipalities. Ballot initiatives offer promise for more widespread access to mushrooms, but all of it, as with cannabis, demands constant public education, activist energy, and legal heft.
Wouldn’t it be wonderful if by 2025, marijuana, psilocybin, and other psychedelic substances are just as available as alcohol is today? Realizing this dream is not too far-fetched — we are on our way.
The Rodman Law Group is humbled to be a part of this movement. Psychedelic compounds like psilocybin will improve and save lives. It is time for more of us who feel passionately about these substances to continue laying the groundwork for a much more sensible approach to drug policy in this country. The Overton window for psychedelics is open.
And one day, we hope, DEA finally will remove marijuana, psychedelic, and empathogenic drugs from Schedule I.
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