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Editor’s note: This is a living resource that was last updated December 28, 2022.
By now you’ve heard the news: During the 2022 midterm elections, Colorado passed the most comprehensive psychedelics measure ever introduced on a statewide ballot. The result is a historic repudiation of the War on Drugs, through which psychedelics have been outlawed and criminalized for decades.
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Even organizations that had been critical of Proposition 122 before it passed on November 8 have acknowledged that it goes further than any statewide measure before it to protect people who use psychedelics from arrests and prosecutions. It also offers Coloradans suffering from conditions like PTSD and treatment-resistant depression a new avenue to seek relief; preliminary studies of psychedelics such as psilocybin—the compound found in magic mushrooms—show that it might help to alleviate various mental health challenges when combined with psychotherapy.
Prop 122, also known as the Natural Medicine Health Act (NMHA), even extends beyond a measure that previously passed in Oregon in 2020 to legalize guided magic mushroom sessions. Ours will not only set up a similar state-overseen program through which, as soon as late 2024, Coloradans will be able to legally pay for guided magic mushroom sessions at licensed healing centers, but it also removes criminal penalties for various types of “personal use.” As of December 27, when Governor Jared Polis officially ratified Prop 122, Coloradans 21 and older can grow, gift, gather, and consume a number of naturally occurring psychedelics, including psilocybin, psilocin, DMT, ibogaine, and mescaline (but excluding peyote).
That said, the 18-page measure is complicated, and it will take years to navigate the NMHA’s rules, complexities, and prohibitions. Even though some Coloradans are eager to legally pay for psychedelic experiences under the guidance of state-approved facilitators, that won’t be available until government officials, private businesses, mushroom growers, and certified guides build a whole new industry from the ground up.
It won’t be easy. Below are just a handful of the issues to follow here in Colorado, beginning with the parts of the NMHA that first go into effect or will be decided.
Decriminalized personal use: What’s allowed under the NMHA?
What we know:
The part of the NMHA that has gone into effect first is perhaps the most groundbreaking part of the measure: decriminalizing the personal use of psilocybin, psilocin, DMT, ibogaine, and mescaline for Coloradans 21 and older, who will have protections to grow the aforementioned psychedelics and use them in private spaces, including their homes. Decriminalization tacitly allows this by removing criminal penalties at the state and local levels. In other words, even though the substances are still technically illegal, the chance of being arrested or facing any consequences is less likely.
There are some caveats, however: The measure allows Coloradans to freely gift naturally occurring psychedelics, but does not allow individuals to sell psychedelics for profit under its decrim provisions—so don’t expect dispensaries selling DMT on the corner. The NMHA’s protections also do not apply to synthetic versions of the substances—only compounds extracted from natural plants and fungi. Keeping the substances away from children is required, too.
Finally, the measure specifically prohibits ingestion of psychedelics in “public places.” So swallowing some mushrooms in the aisles of Red Rocks? That’s not technically protected. But does that mean you can’t happen to be tripping in a public space? What about being under the influence in nature? Joshua Kappel, a Denver attorney, partner at Vicente Sederberg, and chair of the NMHA campaign who helped write the measure, notes that there’s some nuance there.
“There is a prohibition in Prop 122 that you can’t ingest natural psychedelics in a public space, but that prohibition doesn’t extend, necessarily, to being under the influence of psychedelics in a public space,” he says. “That said, it’s super important to know that a lot of our parks have separate prohibitions around federally illegal drugs. For example, most of our parks and natural resources in Colorado are on federal land, and the possession and use of psychedelics is illegal under federal law. So if you’re bringing mushrooms to Rocky Mountain National Park, there could be issues because you’re violating federal law on federal land.”
Remember: Just because it’s no longer considered a crime at the state or local level to use natural psychedelics in Colorado, it’s still illegal in the eyes of the Feds. That means anyone who partakes should always pay attention to where they’re ingesting, especially if they happen to be standing on federal land.
What we don’t know:
A critical, unanswered question surrounding the personal use section of the NMHA is how much—or how many—psychedelics an individual can possess or grow under the law.
The NMHA’s language stipulates that a person may keep a quantity of psychedelics that is “necessary” to engage in various types of healing or “beneficial” use. But as some legal observers in Colorado have already noted, who’s to say what is necessary? And what quantity of, say, mushrooms would that be for a person—an ounce? A pound? Thirty pounds? And are those dried mushrooms or wet mushrooms?
In the drafting process, grassroots activists successfully advocated for no hard cap on the amount of psychedelics that any person could possess, use, or grow. Now, with its vague wording, the NMHA leaves that up to interpretation.
Kappel, as one of the NMHA’s authors, acknowledges various scenarios that could happen. “Who would decide what is reasonably necessary?” he asks. “It could be a question for a jury or a judge. Or it could be changed by the legislature. With that said, we expect the legislature is not going to change a law that just passed by over [175,000] votes.” If the question was addressed in a courtroom, Kappel adds, “the courts interpret phrases under a reasonable person’s standard.” (Already, the NMHA is impacting court cases, including the recent dismissal of a felony case against Denver’s “Mushroom Rabbi.”)
Until there’s more guidance from the courts or state officials, it may be up to the individual to decide where to draw the line on possession amounts—and hope any cop, judge, or prosecutor would feel similarly.
Who will help the state make rules for its new psychedelics program?
What we know:
The NMHA tasks Colorado’s Department of Regulatory Agencies (DORA)—a state agency that regulates more than 50 professions ranging from barbers to dentists to therapists—with setting the rules for and overseeing Colorado’s legal mushroom program (the one where you can pay to take psilocybin—and possibly other naturally occurring psychedelics after 2026—with a sitter). But to help guide DORA in the rule-making process, the NMHA also establishes a volunteer advisory panel that will consist of 15 experts in various fields related to psychedelics. These folks, though unpaid, will wield considerable influence in recommending policies to DORA, such as the kind of training mushroom facilitators must undergo in order to be licensed by the state. The NMHA stipulates that, collectively, these 15 experts have backgrounds in areas including mycology (the study of mushrooms), Indigenous use of natural medicines, psychology, and more. Governor Polis will appoint the members of the advisory panel no later than January 31, 2023. Anyone, including you, dear reader, can apply to be on it.
What we don’t know:
We don’t know who’s going to be on the panel—and what particular emphases they’ll bring to the table. But at least one person from the NMHA campaign, its co-chief proponent Veronica Lightning Horse Perez, is throwing her hat in the ring: “I’m definitely going to apply and see if I can get in touch with Polis so that he can put a face to my name,” Perez says. Citing her background running a wholistic health practice in Littleton, Perez—who has an Apache bloodline and is a board-certified therapist—adds that she will be applying for the advisory panel seat that’s geared toward behavioral health.
Perez says that she and others who were associated with the NMHA campaign have also been reaching out to individuals who they think would make valuable contributions to the advisory panel and encouraging them to apply. “My big thing is to make sure that there are voices on that advisory board that are heart-centered and have a deep understanding of the medicine,” she says.
But how much sway might Perez and other NMHA campaigners have over Polis’ selections? If Colorado’s rollout is anything like Oregon’s, a lot.
Mason Marks is an attorney, law professor at Florida State University, and Harvard University fellow who specializes in psychedelic law. In 2021, he lived in Portland and was appointed by Oregon’s governor to serve on the state’s psilocybin advisory panel. In Marks’ telling, his selection wasn’t a coincidence—despite more than 250 other people applying. “The people from the [Measure 109] campaign had direct access to basically help hand pick the people for that board in Oregon,” he says.
Marks believes he was selected because he had campaigned to pass Measure 109, which was primarily funded through the same political action committee, New Approach PAC, that spent million of dollars to pass the NMHA in Colorado. “The moral of the story is that these people that spend millions of dollars to draft the law and pass it are going to want to get the people they want to get on that board,” Marks says. “That’s about to be repeated in Colorado.”
Time will tell if Marks is right. The Denver-based chief of staff for New Approach, Taylor West, told 5280, “I don’t have any specific information on who’s put their hat in the ring or what the governor’s office’s process will be for evaluating those applications.” But if Polis’ recent television interview with Bill Maher is any indication, our governor doesn’t have too much personal experience with psychedelics, so he will likely seek some kind of input when selecting the NMHA advisory panel. At least in our state, it would be wise for his office to screen applicants for any conflicts of interest—which was an afterthought, and then became a big problem—in Oregon.
Who can become a licensed psychedelic guide? And what is the process?
What we know:
Under the NMHA, the state—which is to say, DORA—has until January 1, 2024, to write rules around the qualifications and training requirements for facilitators, or guides, in Colorado’s legal psilocybin program. DORA will then have until September 30, 2024, to begin accepting applications for licensure. Eventually, the state will issue licenses for the administration of mushrooms to clients, as well as permits to run “healing centers.” The state will also administer licenses to a host of other industry-supporting businesses, such as training programs, mushroom cultivation facilities, and mushroom testers.
The NMHA stipulates that the state not require psilocybin facilitators to hold professional degrees or titles, such as already being a licensed therapist or doctor. Prior experience with naturally occurring psychedelics may waive some training requirements (that will be up to DORA), and the NMHA requires training programs to be accessible to low-income individuals or others who might face logistical challenges in obtaining a license.
What we don’t know:
While the NMHA lays out many topics that training programs are supposed to cover—ranging from privacy and client safety to cultural considerations—it’ll be up to the advisory panel and DORA to spell out that training curriculum in much more detail.
Oregon’s experience has shown us that this involves a dizzying array of considerations. For instance, what’s the proper amount of training that a prospective facilitator should receive before being licensed? In Oregon, authorities settled on 120 hours of learning plus 40 hours of in-person training—but some critics pointed out that this is roughly equivalent to the time it takes to become a real estate agent in that state. Is that enough training to protect clients’ safety? At the same time, others worried that Oregon’s rules were already too burdensome for rural applicants or parents for whom traveling to a training center would be a logistical hurdle (not to mention the training programs’ costs, which already range from $7,900 to $9,550 in Oregon).
Other questions arise around the realities of opening healing centers. Could a tiered system emerge—damaging the goal of an equitable industry—if clients are willing to pay more to see facilitators who are also therapists? What will banking and taxes look like around a federally illegal substance (similar to challenges around cannabis)? How will DORA handle complaints about potential facilitator abuse—including any allegations of sexual abuse? And what kind of liability protections will be available to facilitators if something happens to go wrong?
On the plus side, says New Approach’s Taylor West, Colorado can learn a lot from our West Coast counterpart. “I think we’re going to benefit from the experiences in Oregon’s implementation, without being a carbon copy of that,” West says. “Colorado is going to have its own approach, but we won’t be starting from a completely blank slate.”
Will psychedelic clients have to share data with the state?
What we know:
The NMHA states that client data may be collected by healing centers and shared with the state. According to Kappel, this is so that DORA and the advisory panel can monitor client outcomes and evaluate the workings of Colorado’s legal psilocybin program. “Any data collected is not subject to the Open Records Act and is classified as medical data,” Kappel says. The lawyer adds that the provisions are written with both safety and privacy in mind. “I think if you err on the side of not collecting any data in the name of privacy, you fly blind,” he says. “And if you collect any data that’s personally identifiable—which is prohibited—then no one will participate. So, I think there’s a balance around de-identified anonymous data in the aggregate to help us create a safe and equitable program.”
What we don’t know:
We don’t know if all Coloradans are going to feel comfortable sharing information about themselves and their psychedelic sessions—which could include basic demographic details (the clients’ gender, age, etc.) or more intimate information: What happened during their experience? Do they feel “healed?” What areas of their life are they trying to change?
Data collection became a sticky subject in Oregon when the state’s psilocybin advisory panel recommended that clients be informed about data collection and given the ability to opt out. Instead, the Oregon Health Authority (a rule-setting body similar to DORA) released draft rules making data collection a compulsory component of receiving psychedelics. The final rules in Oregon should be decided by the end of 2022.
Mason Marks, the lawyer who served for a year on Oregon’s advisory panel, brought this disagreement into the public eye—along with his concerns about potential data collection in Colorado—when he published an article in WIRED titled “Seeking Psychedelics? Check the Data Privacy Clause.” While he heard the justifications for data collection—that it’s needed for big-picture evaluations, safety, and accessibility—Marks drew on his health privacy background to sound the alarm about handing over client data to the state. “There’s always a risk that the information can be hacked or leaked,” he says. But perhaps more concerning? “Federal authorities could access it pretty easily.”
As Marks wrote in WIRED:
A state-run database of psychedelic client information could easily be accessed by federal agencies such as the Drug Enforcement Administration (DEA) due to a case earlier this year, in which the federal First Circuit Court of Appeals held that the DEA could search a state prescription database without a warrant. The DEA and other agencies likely have more leeway regarding psychedelics because, unlike prescription medications, psychedelics will remain federally illegal if Proposition 122 passes.
And while the NMHA requires client data to be anonymized, Marks worries that, with enough contextual clues or lapses in protection, clients could be identified. Marks also has his suspicions about why some wanted to make data collection mandatory in Oregon: The information could be invaluable to researchers and pharmaceutical companies. “Imagine having a giant database full of thousands of people’s records just from therapy sessions—that would be valuable in itself,” he says. “Now you give them psychedelics and all kinds of different psychological tests before and after. You’ve got yourself your own research paradise.”
Ultimately, though, what data collection look like—and how it is shared—will be up to DORA.
What will community-based healing models look like under NMHA’s psychedelic decriminalization provisions?
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What we know:
Psychedelics like psilocybin mushrooms and ayahuasca have long cultural histories, including centuries of use by Indigenous communities in Central and South America. But in modern times, these powerful plants and fungi have been appropriated by outsiders seeking enlightenment. That includes an infamous episode in the mid-1950s, when a New York banker-turned-mycologist traveled to Mexico and documented the ceremonial practices of a healer named Maria Sabina.
Colorado has its own complex history of psychedelic use—both spiritual and recreational—and much of it has been driven underground for decades due to the War on Drugs, which began in earnest when then-President Richard Nixon declared drugs “public enemy number one” in 1971. Colorado’s network of psychedelic practitioners—no one truly knows how big it is—comprises guides, healers, growers, and spiritual users.
The NMHA’s decriminalization provisions include significant protections for these types of practitioners to administer psychedelics in the open. Undergoing experiences with guides who operate outside of the state-overseen system could also look much different than the relatively strict version available in Colorado’s legal program; rather than following DORA’s guidelines, community-based healers could offer alternative ceremonies or practices.
For instance, instead of paying what could be thousands of dollars to visit a state-licensed healing center and take mushrooms under a DORA-decided protocol (maybe wearing eyeshades and headphones while a licensed guide watches in a soft-lit room), a community-based practice might offer more of an overt spiritual component (singing, praying, etc.), or might ask clients to wander in nature.
The caveat is that community-healing practices will need to adhere to restrictions listed under the NMHA’s decrim provisions. For instance, a healer outside of the state-overseen system cannot sell mushrooms or other psychedelics to clients, engage in paid advertising, or give away psychedelics as part of a business promotion. Interestingly, though, while addressing what’s permitted in community use outside of the state’s legal program, the NMHA does allow payment for “bona fide harm reduction services, bona fide therapy services, or bona fide support services.”
What we don’t know:
We don’t know what community-based psychedelic services will actually look like. Will legacy guides feel comfortable transitioning to above-ground work? Will ayahuasca ceremonies sprout up all over Colorado? Will any of these services—and the state’s program for that matter—offer reparations to Indigenous communities whose practices they draw upon?
Whatever form community use takes, the NMHA campaign’s co-chief proponent Veronica Lightning Horse Perez says that protecting decriminalized use is a priority for her. “We need to do what we can to make sure that the regulated model can coexist—in peace—with the healers and shamans and people that will be working more in the harm reduction and spiritual services domain,” she says.
But can community healers get paid under the NMHA’s language? Can they “gift” mushrooms to a client, then claim payment under “bona fide therapy services?”
While praising the inclusion and the intent of the NMHA’s decrim provisions, Marks worries they may conflict with the state-run program. “If you can basically do the same thing [as a community healer] but not get a license or pay all of these fees and taxes, then why would you get a license?” he asks. “That is going to be in direct tension. And that is concerning.” The attorney wonders if NMHA’s decrim portions can be, as he puts it, “significantly constrained or ultimately eliminated if that’s what certain people want.”
This is where grassroots pressure may have a big influence on the NMHA’s roll-out—and activists know it. Already, various community-interfacing organizations including the nonprofit SPORE and consulting company ALKEMI are gathering input from the public that could help influence the direction of Colorado’s psychedelic future.
Will lobbyists and outside groups influence implementation of psychedelic treatments?
What we know:
Around the time that Measure 109 passed in Oregon in November 2020, a nonprofit organization led by M109 campaigners formed called the Healing Advocacy Fund. One of its main goals was to influence the implementation of M109, and for years, the Healing Advocacy Fund has been attempting to do just that through regular meetings with Oregon lawmakers and by hiring lobbyists to represent its interests.
Now the Healing Advocacy Fund is coming to Colorado, says Taylor West of New Approach when asked about next steps in Colorado. “New Approach as an organization will not have any formal role in what’s happening in Colorado implementation,” she said. But the Healing Advocacy Fund will. “That organization will be doing similar work here [as in Oregon], but with people who are Colorado-based.”
New Approach PAC does not financially back the Healing Advocacy Fund, West says; the group’s money comes from other philanthropists. Yet according to Portland alt-weekly, Willamette Week, backers include the Psychedelic Science Funders Collaborative, an organization that shares an executive director with New Approach PAC.
“One of the reasons why it’s really important to have an outside organization of people who are advocates for the initiative is that they’ve spent a lot of time thinking about these questions already and have a lot of native expertise in the way these medicines work,” West says. “That’s a collaborator that you want to have if you’re a rule maker or regulator or advisory board member. That’s a group that’s going to be able to help you tackle some of these questions.”
What we don’t know:
How influential will the Healing Advocacy Fund or any other lobbyists be upon the roll-out of the NMHA?
In Oregon, the Healing Advocacy Fund’s sway on state rule-makers drew the ire of some members of that state’s psilocybin advisory panel. Marks remembers one meeting where the relationships between bureaucrats and lobbyists was challenged. “One of the [advisory board] members expressed concern about that and said, ‘I’m concerned about these lobbyists, the Healing Advocacy Fund.’” He recalls. “They had been meeting with the regulators at the Health Authority and influencing what would get put on the agenda of the advisory board.”
Ultimately, nothing came of the remarks, but recently, through an open records request, Marks obtained emails showing communications between Oregon rule makers and individuals associated with the Healing Advocacy Fund; the emails appear to show discussions about data collection that went against the wishes of the volunteer advisory panel, highlighting the politicking within back channels.
Meanwhile, it’s difficult for unpaid volunteers on an advisory panel—like the one that’s about to be set up in Colorado—to compete with the efforts of full-time, paid lobbyists, Marks says. “I just think it would be a shame if [lobbyists] run the show in Colorado and the status quo continues,” he says. “Hopefully Colorado will actually get a diverse advisory board that’s not in the pocket of any particular group.”
Wow, this is a lot. Anything else I should watch for?
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We’ve only scratched the surface of what’s expected to be a complicated process full of unknowns. We haven’t even gotten to questions about how criminal record-sealing provisions in the NMHA will work, how legal microdosing might operate, how the state plans to affirm equity promises in the NMHA, what might happen if the FDA approves psilocybin treatments, how counties might enact time and manner restrictions on the state-run program, and whether a proposed limit on healing centers can prevent the kind of runaway capitalism we’ve seen in the cannabis industry.
Needless to say, we’ll keep you up to date on this rapidly evolving topic in Colorado. And please check back often. Because if you’ve taken anything from this article? Buckle up, there’s going to be a lot to discuss over the coming years.
