Psychedelics Acceptance Among Policymakers Reaches New High

Psychedelic drugs, which have been strictly prohibited by the federal government for decades, are starting to become accessible in the United States through a fast-growing patchwork of legislative, regulatory, and municipal reforms. In 2019, Denver became the first US city to decriminalize psilocybin, and in late 2020, Oregon became the first state to both decriminalize psilocybin and legalize it for therapeutic use. Since Denver’s landmark policy change, 25 states have considered scores of legislative and ballot initiatives, with the number of proposals steadily increasing each year. While these proposed policy changes vary in their framework, most have proposed decriminalization, with fewer setting forth possible medical oversight and/or training and licensure requirements.¹

The rapid push to increase legal access to psychedelic drugs comes on the heels of a number of recently published studies that found that psilocybin-assisted psychotherapy can be a quick-acting and effective treatment for those with major depressive disorder, and, further, that psilocybin treatment produced substantial and sustained decreases in depression and anxiety in patients with life-threatening cancer.²˒³ A number of studies have also found that psychedelic drugs may significantly help to reduce the risk of pain, opioid use, dependence, and abuse.⁴˒⁵

The area of medicine and law related to the therapeutic use of psychedelics is evolving quickly, and the interplay between federal, state, and local law is complex and largely untested. Read on for a look at the federal government’s current stance, the changes being made by states and cities, and how those may interplay with federal law.

The Controlled Substances Act of 1970 has long classified hallucinogenic substances, also known as psychedelics, as Schedule I drugs with “no currently accepted medical use,” a “lack of accepted safety for use under medical supervision,” and “a high potential for abuse.”⁶ However, since their initial inclusion in Schedule I, the safety and medical utility of psychedelics in treating a variety of conditions has been supported by a number of studies, including large-scale clinical trials.¹

In light of these studies, the federal Substance Abuse and Mental Health Services Administration (SAMHSA) has recently indicated that it may pursue a policy of “harm reduction, risk mitigation, and safety monitoring” regarding substances such as psilocybin and MDMA, rather than strict prohibition, and the agency is exploring the prospect of establishing a federal task force to monitor and address issues related to the emerging medical use of these substances.⁷

Perhaps even more indicative of the federal government’s interest in advancing access to the safe use of psychedelic medication, the FDA has already designated both MDMA and psilocybin as “breakthrough therapies,” as it has become clear that the drugs demonstrate substantial improvement over currently available treatments used to treat a variety of mental health conditions.⁸

Congress has begun to follow the FDA’s lead with Senators Rand Paul and Cory Booker introducing in November 2022 the bipartisan Breakthrough Therapies Act, legislation that would enable the Drug Enforcement Agency (DEA) to make the findings necessary to transfer breakthrough therapies involving Schedule I substances from Schedule I to Schedule II. If passed, the bill would also remove federal regulations that impede research and development of Schedule I drugs that may, in fact, have therapeutic uses.⁹

Despite the fact that they are still listed as Schedule I controlled substances by the federal government, a number of cities and states across the country have started to take action to expand access to psychedelics in their hometowns.

Existing State Laws: Oregon and Colorado

Oregon and Colorado are the only states thus far to have legalized at least some psychedelics statewide.

The Oregon Psilocybin Services Act took effect on January 1, 2023, creating a licensure process for manufacturers, service center operators, laboratories, and facilitators for the use, manufacture, delivery, and possession of psilocybin products. While the law permits adults over the age of 21 to utilize psilocybin for therapeutic reasons, it requires a state-certified facilitator to be present during an individual’s consumption of the medication, and it does not authorize retail sale of psilocybin in the state of Oregon.¹⁰

In late 2022, Colorado passed the Natural Medicine Health Act of 2022, which defines the term “natural medicine” as including DMT; ibogaine; mescaline (excluding peyote); psilocybin; and psilocyn.¹¹ The law charges the Colorado Department of Regulatory Agencies with establishing the qualifications, education, and training requirements that facilitators must meet prior to providing natural medicine services and to approve any required training programs no later than January 1, 2024.¹²

On a smaller scale, local jurisdictions across the nation have decriminalized the use of psilocybin, including: Oakland and Santa Cruz, California; Somerville, Northampton, and Cambridge, Massachusetts; Ann Arbor and Washtenaw County, Michigan; and, perhaps most notably, Washington, DC.

State Laws in the Works: New York, California, and More

With the 2023 legislative sessions newly underway in many states across the country, a fast-growing list of psychedelic bills has already been introduced for consideration.

Legalization of psychedelics is not only being considered by “liberal” states – Texas and Utah, largely “conservative” states, have both been operating work groups to thoughtfully consider the role of psychedelics in mental health treatment.¹³ The Texas Department of State Health Services was tasked with evaluating the therapeutic efficacy of MDMA, psilocybin, and ketamine for the treatment of depression, anxiety, PTSD, bipolar disorder, chronic pain, and migraines, and was required to submit its report by December 1, 2022. Utah’s Mental Illness Psychotherapy Drug Task Force was required to provide a written report of their findings to the Utah State Legislature’s Health and Human Services Interim Committee by October 31, 2022. It is yet to be seen what future legislative efforts will result from these reports.

The population behemoths of New York and California, both of which have been known to be influential on policymaking nationwide, are considering proposals that would loosen laws related to certain psychedelics, including psilocybin, ibogaine, and DMT.¹⁴ Of note, the New York policy, if passed, would prohibit state and local law enforcement agencies from cooperating with US government agencies in enforcing the provisions of the Controlled Substances Act that criminalize psychedelic drugs.¹⁵ It is yet to be seen how this provision would ultimately interplay with federal law, though it is certainly possible that the federal government would opt to challenge any portions that directly contradict federal law.

New Hampshire,¹⁶ Virginia,¹⁷ Illinois,¹⁸ and Massachusetts¹⁹ are also currently considering legislation that would either make psychedelic medications available medically or would decriminalize adult use of the drugs.

It is unclear how the federal government will respond to the changes in state and municipal policies related to psychedelics. The legal concept of federal preemption means that state law cannot override federal law, so, technically speaking, practitioners are not exempt from any relevant federal laws or their enforcement. However, in light of the actions taken recently by SAMHSA and the FDA, it is possible that the DEA may consider using enforcement discretion similar to what they’ve used in states and cities that have legalized or decriminalized cannabis.

If you practice in a jurisdiction that has either decriminalized the use of psychedelics or allows them for therapeutic use, there are many resources available to help understand their fast-evolving research basis and treatment standards.

Before embracing psychedelics as a part of the therapeutic toolbox, it is imperative to have a solid understanding of which conditions the drugs are most suited to treat, up-to-date treatment standards, including administration and facilitation of the drug’s consumption, and relevant local, state, and federal laws. Education is available through seminars and continuing education opportunities, including courses on specific medications (such as ketamine, psilocybin, and DMT), integration of psychedelics into one’s larger practice, ethical issues, and managing client expectations.²⁰˒²¹

See also:

• Psychiatry: When Your Client Wants to Try Psychedelics

• How to Administer Psychedelic-Assisted Therapy: A Clinical Preview

• Ketamine and Confessions of a Psychedelic Psychotherapist

• Psilocybin as a Treatment for Major Depression

• Psychedelics for PTSD and Depression: A Clinical Update