Lawmakers are aiming to codify how Colorado’s newly legal psychedelics industry will take shape with a bill introduced in the state Senate on Tuesday that would shift rule-making power to a different agency, clarify penalties for unlawful activity and set limits on how much psilocybin an individual can cultivate for personal use.
SB23-290, sponsored by Senate President Steve Fenberg, seeks to implement Proposition 122, the ballot measure approved by voters in November that legalized “magic mushrooms” compounds psilocybin and psilocin for medicinal use and cleared the way for healing centers to open and offer natural medical services.
Fenberg has said he wants to enact the “spirit” of the ballot measure — which also decriminalized the personal use, sharing or growing of certain substances — by clarifying parts of the ballot measure and ensuring it makes sense in the state’s existing regulatory framework.
“The bill basically is striving to implement Prop 122 in a way that makes sense and can be facilitated in a successful way,” Fenberg said Wednesday.
Some advocates viewed Fenberg’s goal with suspicion, as they have since word of the bill began to spread in February. On Wednesday, Matthew Duffy, co-founder and executive director of the Society for Psychedelic Outreach Reform and Education, or SPORE, said he believes the bill undermines personal use protections that activists have been fighting for.
“Unfortunately, there’s a lot of regressive prohibitionist language in this bill,” he said.
The bill largely moves the regulatory authority of healing centers under the umbrella of the Department of Revenue, which oversees marijuana, and out from under the authority of the Department of Regulatory Agencies. The bill imposes limits on the size of home grow operations to a 12-foot-by-12-foot area on private property, but it doesn’t place limits on personal possession.
Despite a desire for more control from some cities and towns, SB23-290 also explicitly prohibits local jurisdictions from banning psychedelic healing centers and imposing greater civil or criminal penalties for unlawful activities related to psychedelics.
The bill also makes it a petty drug offense for someone under the age of 21 to possess or use the substances or for anyone “who openly and publicly displaces or consumes” them. Fenberg has said he had concerns about Prop 122 facilitating black market growth and sales in other states, where the substances remain illegal.
The bill, Fenberg said, makes the criminal penalties clearer and more explicit than Prop 122 did.
“So that A, law enforcement knows what is and what is not permitted,” he said, “but then B, it’s very clear for a consumer what they’re allowed to do and what they’re not allowed to do so they don’t get caught up with law enforcement unnecessarily.”
Fenberg previously told The Denver Post that the ballot measure gave the Department of Regulatory Agencies the sort of oversight it doesn’t typically provide. His bill would create a division of natural medicine within the Department of Revenue to oversee the healing centers and create rules to regulate them. It’s similar to the department’s authority over marijuana, which Fenberg said he wanted to align with how natural medicine will be overseen.
The bill also would establish a specific “indigenous community working group” to examine “issues related to the commercialization of natural medicine… for indigenous people, communities, cultures and religions.” Specifically, that group would study how to avoid misappropriating or exploiting native groups and to avoid “excessive commercialization” of the substances.
Duffy at SPORE said he was encouraged that lawmakers are inviting indigenous perspectives into the policy process and that the bill does not set limits on personal possession. However, he feels many aspects surrounding decriminalization have been compromised.
For example, SB23-290 does not allow any unlicensed practitioners to be compensated for providing services such as facilitation, support, harm reduction services and education. That means individuals who have historically worked in the space, underground or ceremoniously, would be forced to do it for free or otherwise be vulnerable to criminal penalties.
“People who have a cultural heritage, especially indigenous people, that is not at all reflected in what’s being created in this regulated access model because it has to be understood that these medicines have always been held in the community, they’re known as the people’s medicine. For thousands of years, they’ve never been institutionalized,” he said.
Tasia Poinsatte, Colorado state director for the Healing Advocacy Fund, which backed Oregon’s psilocybin legalization measure in 2020, also expressed concern about the lack of compensation for unlicensed practitioners. In a news conference Thursday, she said allowing compensation for these services is “critical to actually helping keep people safe while they’re using the medicines.”
“We feel the language is integral to the spirit and intent of the measure and must be added back in order to support safe equitable access to these healing modalities,” she said.
The prohibition of displaying ornamental plants like the San Pedro cactus is also irrational, Poinsatte said, because the cactus is legal and sold at garden stores throughout the country. Colorado would be the only state to prohibit this plant, she added.
Duffy is also concerned about language he believes could recriminalize certain psychedelics. The bill states that an unlicensed manufacturer that uses hazardous materials to create natural medicines could be subject to a class 2 drug felony. According to Duffy, that could implicate DMT because of the way the hallucinogenic substance is most commonly extracted.
Fenberg is well aware of the concerns from advocates. At a February town hall in Boulder, the room was packed with constituents concerned about his intentions. He said Wednesday that more legislation likely would be needed in the future to further clean up issues that may be discovered during the initial implementation and rulemaking processes.
If the bill passes, policymakers will have a few extra months to iron out the details. While the original measure calls for regulators to begin accepting applications for licensure by Sept. 30, 2024, SB23-290 extends that deadline to Dec. 31, 2024.
“There are challenges, because anytime you deviate from the words of a ballot measure, people assume that maybe you’re doing something counter to what the ballot measure was trying to do,” Fenberg said. “I genuinely don’t think we are. We actually are just trying to implement it in a responsible manner.”
Denver Post staff writer Nick Coltrain contributed to this report.
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