Beyond Oregon: A New Drug Policy Horizon in the U.S.

MAPS Bulletin Winter 2021: Vol. 31, No. 1

Download this article.

Note: The authors received the sad news of Sheri Eckert’s passing while we were making our final edits to this piece. In offering this reflection, we hope to acknowledge and honor her inspiring work in imagining, actualizing, and passing Measure 109 in Oregon. 

For over three decades, MAPS has worked to end the global war on drugs through medical research, education, and advocacy. We have focused on changing federal and international drug policy and breaking psychedelic stigma by creating legal, medical contexts for psychedelic healing. To provide some guidance and recommendations for the rapidly expanding community of psychedelic drug policy reformers, MAPS published ourConsiderations on the Regulation and Decriminalization of Psychedelic Substancesin 2019.

Our broad priorities for psychedelic policy reform remain consistent at the international, federal, state and local levels; we supported civil society activists around the world to pressure the UN Commission of Narcotic Drugs to follow WHO’s recommendations to recognize the medical benefits of cannabis (which they partially did),sued US Federal agencies to increase access to cannabis for research, and encouraged grassroots efforts toward full decriminalization. We talk to elected officials, coalesce with leadership from campaigns, and research nitty-gritty details of legislative language to provide recommendations.

As part of our continued commitment to contribute to building the psychedelic ecosystem, MAPS maintained open conversation with the Measure 109 and 110 campaigns in Oregon to understand the initiatives’ content and context, providing strategic support throughout the qualification, voter education, and implementation processes. Oregon’s citizens voted the two groundbreaking measures into law last year; implementation will take place over the next two years:

  • Measure 109 - the Oregon Psilocybin Services Act - passed with 56% of the vote. The Measure’s passage establishes the Oregon Psilocybin Services Program, a regulated, legal market for psilocybin products to be sold and used in supervised services as a limited exception to the criminalization policy of psilocybin production and distribution in Oregon. Measure 109 maintains some of the elements of medical protocols utilized in clinical trials of psychedelic-assisted therapies (i.e. requiring a secure container, licensed facilitator, and non-drug preparation and integration time). Some elements of delivery of traditional medical care are adjusted, including barriers to access created by diagnosis requirements for patients and requirements of therapeutic licensure for guides. It is important to note that M109’s legal standing is most similar to state-legal adult-use cannabis programs, which remain illegal under federal law.

  • Measure 110 - Oregon’s Drug Addiction Treatment and Recovery Act - passed with 58% of the vote. This is possibly the most promising drug policy reform in the United States to date, as it is the closest we have come torepudiating the “war on drugs” criminalization mentality and replacing it with one rooted in by public health, compassion, and non-coercive treatment that permits the possibility of full-spectrum support. Notably, Measure 110 was the first successful effort in the United States to decriminalize the personal use of a number of substances including MDMA, LSD, ketamine, methamphetamine and heroin while adopting the first state-level decriminalization of schedule 1 plants, cacti, and fungi.

Advocates and lawmakers in other states have enthusiastically started to move toward replicating these policies elsewhere. Working together, we can create a future where all drugs are fully decriminalized and medical access, personal use, and spiritual practice coexist. We offer the following analysis to expand on some of what we are excited about - and what we are cautious about - in the hopes of learning with and from advocates seeking similar reforms. Such reforms should seek to:

  • Resist stigma by divesting from coercion, pathologization, and criminalization,

  • Lower barriers to entry while maintaining quality of care, and

  • Protect consumers while regulating responsibly.

Resist stigma by divesting from coercion, pathologization, and criminalization

Stigma and criminalization are two dangerous exacerbating factors for drug use. To approach a safer social baseline that has been impossible under prohibition, decriminalizing drugs should always be paired with social support measures including fact-based education, unarmed and appropriately trained crisis response, legal and accessible rapid substance analysis, and access to qualified therapeutic care for those who seek it. 

Treatment or addiction recovery support is often based in shame rather than evidence; one-size-fits-all; and coerced by the threat of a loss of life, safety, or freedom. This unfortunate status quo of ill-suited, often-forced interventions for substance use fails many of the people it purports to help. Instead of being compassionate and supportive, this type of treatment perpetuates a policing-oriented mindset and undermines personal autonomy and agency - key aspects of healing and recovery. Measure 110 specifically protects against coercive treatment by providing an option to waive the fine that would normally come with an infraction for anyone who participates in a substance use screening but putting no other requirements on the person. 

Under Measure 109, rather than conditioning access on a medical diagnosis, all adults will be eligible to use supervised psilocybin, absent contraindication. This theoretically expands access to psilocybin services for adults in Oregon far beyond the diagnosis-based treatment that FDA approval for psilocybin would include. Permitting access to psychedelic services without the prerequisite of pathology will better empower people to choose psychedelic interventions in the pursuit of health and well-being.

Because criminalization often exists at the edge of regulation (for now), advocates should continue to engage with the question of how regulated use and decriminalization can remain in lockstep. Indeed, an outcome where people could pay for facilitated psilocybin use in a licensed center—but could not forage for mushrooms in a park—would still be unjustifiable. Although many advocates were initially concerned that decriminalization was taken out of Measure 109, we were relieved that Measure 110 passed concurrently, permitting possession of up to 12 grams of psilocybin or psilocin. These limits provide meager protections, but the additional commitment to provide non-coercive treatment instead of jail for people caught with drugs is a step in the right direction. Future efforts should ensure that these reforms are paired together.

Like many laws that create legal, licensed, regulated markets, policy that exempts license-holders from drug prohibition laws while a) not changing the status of non-licensed activity and b) giving regulatory authorities and law enforcement broad permission to enforce licensure violations may incentivize state actors to allocate resources to punish behavior that occurs outside of licensed systems. Oregon will now implement significantly reduced criminal penalties for possession of small amounts of psilocybin (misdemeanors or license violations) and exempt those in the regulated market from criminal penalties -- yet continue to penalize manufacturers and distributors outside the licensure system with charges as severe as felonies. 

The same freedom of choice doesn’t yet exist for other substances, threatening the safety and well-being of people who use those substances rather than, or in addition to, psychedelic ones. Future reforms can weave decriminalization and regulation together in a way that maximizes opportunity and healing without sacrificing justice and fairness. 

Lower barriers to entry while maintaining quality of care

In order to receive a facilitator license under Measure 109, an applicant need only hold a high school diploma or equivalent; receiving the facilitator license cannot be conditioned on holding a higher degree. This stands in contrast to FDA’s recent requests to require advanced professional degrees among the credentials of people facilitating MDMA-assisted therapy for PTSD and psilocybin therapy for other indications. Intentionally lowering barriers to entry for prospective facilitators and providing opportunities for meaningful work to those who do not have access to higher education can be done responsibly. Before prohibition and throughout its reign, including through ourZendo Project, people with and without professional degrees have offered sound support to people in altered states. Bolstering this lived experience with training, while protecting patients with regulations, will improve the safety, quality, and affordability of care. 

Increasing opportunity for prospective facilitators is critical to accessibility, but Measure 109 also maintains many common barriers to entering the regulated market. For example, licensure is conditioned on subjective standards of good moral character and financial responsibility, excluding people with some criminal histories. Advocates must critically consider which barriers to entry actually protect people, and which could become tools for bias and systematic marginalization.

Lowering barriers to entry for practitioners brings up questions about how to ensure the safety of clients and maintain quality of care. Ongoing analysis, discussion, and reflection will provide the frameworks to conceptualize and address this tension. It will be essential to prioritize community and interdependence, while incentivizing concern and respect for others, in a paradigm in which legalization is so often reduced to meaning nothing more than “permission to commodify.”

Protect consumers while regulating responsibly

It will be important for advocates to watch -- and influence -- how a public entity like the Oregon Health Authority creates a new system of licensure and permits the delivery of psychedelic services to the public. Consolidating decision-making power about implementation in any one entity risks overcentralization and imbalanced power. Similarly, many are justifiably skeptical of the drug treatment and addiction recovery industry’s ability to appropriately adapt to non-coercive approaches. 

Prospective psilocybin service clients in Oregon will be asked information about risk factors and contraindications to determine whether they can participate in a session, but the sessions are otherwise not medicalized. Anything with the appearance of therapy or medical care - even and especially if it does not automatically come with protections from HIPPA or stronger - should come with consumer protections like data security and personal privacy protections. Because the potentially sensitive nature of information disclosed about use of psychedelic services could have unanticipated implications for immigration status, family, employment opportunity, access to insurance markets, and other legal risks, gathering of information should always come with data and privacy protections proportional to its sensitivity. 

This is true and important for any systems that collect health data. In the age of big data, insufficient privacy protections could increase the vulnerability of some clients, especially for non-US citizens, undocumented persons, those who have been incarcerated, and parents. Any system that interacts with sensitive, personal records must maintain the highest standards of confidentiality and personal privacy to ensure that vulnerable people are not targeted for their participation in the system. (This includes anyone aggregating and licensing or selling consumer data on people using psychedelics or other drugs, too.)

The intersection of drug policy reform and commercialization is essential to safely meet the existing demand, so it will be essential for psychedelic reformers to actively engage with the emerging ecosystem to build a conscious system of exchange. Measure 109 includes a tax on psilocybin products, but not on psilocybin services, and advertising restrictions are likewise placed on products, but not on services. Promotions in Oregon theoretically won’t come with billboards advertising mushroom chocolates themselves—the billboards may just advertise the people handing you the chocolates and their facilities. If MAPS’ experience with MDMA is any indication, the majority of the cost for services will be in the hours of licensed care, not the substance itself. We are still in the process of determining what advertising rules MDMA-assisted therapy will be subject to, so we’re watching this process closely.

Advertisement and promotion can be used to manipulate consumers, often at the expense of accurate information, and hope that Oregon can find a balance of education and access to information that puts the safety of its citizens first. 

Conclusion: To balance, prioritize process

In the same way that MAPS must navigate DEA and FDA regulatory requirements for drug development to turn MDMA into a medicine, policy change at the state or local level will have to contend with the reality of integrating or rejecting existing systems. We recognize the challenge of navigating regulatory realities among a changing political landscape while staying in alignment with the needs of people who are seeking care. We commend our allies for beginning to clear these murky waters! 

However, we still have a lot to learn. Since the Industrial Revolution, industry has been prioritizing business interests before people and planet; too-few examples in the cannabis industry contradict that norm, despite its origins in movements for justice and healing. Psychedelic advocates can learn from this and instead prioritize safety and support for those most impacted by prohibition and insufficient access to mental health care. The lessons we can learn from social equity and community reinvestment programs encourage deep reflection on how the psychedelic ecosystem approaches restoration and reciprocity -- with society in general and with Indigenous people and practices in particular. 

carl hart

Mechanisms for public feedback and community accountability are necessary to consider a multitude of voices for a safe, equitable, and workable outcome. Open, responsive, and critical dialogue between multiple stakeholders is a proven way to develop and adjust successful standards in this new era. This year, Oregon will convene a panel to discuss and recommend many of the details that its new program will administer. These panels will have added value if they are established before bills are written, incorporating the broadest base of stakeholders in developing the content and supporting implementation of them after passage. 

We remain curious about how to best interact with existing infrastructure in the creation of new models. This new era is creating novel arenas of law and of healthcare, so some big questions remain, including how state-level systems will integrate or conflict with potential FDA approval of psychedelic therapies on comparable timelines, how services will be made available for indigent clients, and how finances and taxes will be managed on a macro level. MAPS looks forward to continuing to navigate these questions and more in the emerging psychedelic ecosystem.

ismail

Ismail Lourido Ali, J.D., MAPS’ Policy & Advocacy Counsel, advocates to eliminate barriers to psychedelic therapy and research, develops and implements legal and policy strategy, and supports MAPS’ governance, non-profit, and ethics work. Ismail earned his J.D. at the University of California, Berkeley School of Law in 2016, after receiving his bachelor’s in philosophy from California State University, Fresno. Ismail has previously worked for the ACLU of Northern California’s Criminal Justice & Drug Policy Project, and Berkeley Law’s International Human Rights Law Clinic. Ismail is licensed to practice law in the state of California, and is a founding board member of the Psychedelic Bar Association. He also currently serves on the board of the Sage Institute, contributes to Chacruna Institute’s Council for the Protection of Sacred Plants, and participates on the advisory council for the Ayahuasca Defense Fund. He has also previously served as Chair of the Students for Sensible Drug Policy Board of Directors. Ismail is passionate about setting sustainable groundwork for a just, equitable, and generative post-prohibition world.



leslie

Leslie Booher, J.D., M.B.A., received her bachelor of science (B.S.) in business administration and her master of business administration (M.B.A.) from Southeast Missouri State University, as well as her juris doctor (J.D.) from University of California, Berkeley, School of Law. Before joining MAPS, Leslie gained litigation experience at large and small law firms, from both the plaintiff and defense sides. Leslie is excited because her work at MAPS combines many of her passions: learning and educating others about our shared human physiology and psychology, striving for social contentment through imaginative socio-economic structures, aspiring for criminal justice reform, and calling attention to the unique role that altered states of perception play in conceptualizing, contextualizing, and coping with our own consciousness.



natalie

Natalie Lyla Ginsberg, M.S.W., is the Director of Policy & Advocacy at the Multidisciplinary Association for Psychedelic Studies (MAPS), where she works to disentangle science from political partisanship, and to create safe, equitable and regulated access to psychedelics, and all criminalized substances. She is also partnering with Israeli and Palestinian colleagues to develop a psychedelic peace-building study. Natalie is particularly inspired by psychedelics’ potential to assist in healing intergenerational trauma, for building empathy and community, and for inspiring creative and innovative solutions. Before joining MAPS in 2014, Natalie worked as a Policy Fellow at the Drug Policy Alliance, where she helped legalize medical cannabis in her home state of New York, and worked to end New York’s race-based marijuana arrests. Natalie received her B.A. in history from Yale, and her master’s of social work (M.S.W.) from Columbia.