Laying down the law

Colorado legislators outline the framework for how psychedelics will be regulated and legalized

Supreme Court weighs on definition of marijuana

On May 9, Gov. Jared Polis signed into law SB23-290, the Natural Medicine Regulation and Legalization bill, providing specifics on how Colorado will enable the personal and therapeutic use of five natural psychedelic substances. 

By and large, the law reflects the original intentions of its progenitor, Proposition 122, which had five main components. First, the state was to decriminalize possessing, growing and gifting psilocybin, psilocin, ibogaine, DMT and mescaline by anyone 21 and older. Second, it directed the state to allow for the supervised use of psilocybin and psilocin at licensed facilities by late 2024, then of the other three natural psychedelics by 2026. It also stipulated that local governments would be prohibited from banning licensed facilities, services or use of those substances. And finally, the proposition called for the state to establish penalties for anyone under 21 using, possessing or transporting these substances. 

But there are a few notable differences lawmakers added or tweaked during their legislative sessions, and SB23-290 is full of details concerning personal cultivation, business licensing and taxation, local authority to regulate these substances and more.

Concerning personal cultivation, the law states that it must be done in a private residence in a space smaller than 12 by 12 feet (or outside on private property in a locked and enclosed area). There is no quantified limit on personal possession of any of the five psychedelics. However, cultivating beyond the limits is punishable by a $1,000 fine, and public consumption or underage possession would be punishable by a $100 fine. 

The law also creates a legal pathway to seal records of Coloradans convicted of a psychedelic-related crime. This was not originally prescribed by Prop 122 but fills a gap for people who can’t get jobs or vote because of felonies related to possessing or growing any of the five psychedelics outlined in the law. On top of that, the law stipulates that the use of these psychedelics would not constitute a violation of parole. 

One of the most notable differences between Prop 122 and SB23-290 deals with regulating therapeutic programs and issuing licenses for cultivators, manufacturers, testing facilities and healing centers. Originally, responsibility for that was given to the Department of Regulatory Agencies (DORA), however, the law creates the Division of Natural Medicine under the Department of Revenue to manage therapeutic programs and licensing. 

Another difference is that SB23-290 establishes a new federally recognized American Tribes and Indigenous community working group. No American tribes were consulted during the campaign for Prop 122, and with the commercialization of these sacred substances on the horizon (Weed Between the Lines, “The psychedelic succulent,” April 27, 2023), some fear there will be cultural and religious exploitation of Native American traditions (see page 6 for a guest opinion on this). The goal of the Indigenous communities working group is to mitigate that outcome.  

SB23-290 also opens up the regulations surrounding ibogaine (Weed Between the Lines, “The addiction therapy drug,” April 6, 2023). Under Prop 122’s language, ibogaine clinics wouldn’t have been able to open until 2026. But under the law, regulators can reconsider that restriction on ibogaine to authorize supervised therapeutic use of it at any time.

The law creates four different kinds of licenses: cultivation facilities, healing centers, product manufacturers and testing facilities. Licensed businesses will be able to deduct expenses from their state taxes. However, like cannabis businesses, under the 280E tax law, natural medicine businesses will still not be able to deduct federal taxes.

Finally, SB23-290 upholds the original provision from Prop 122 that prohibits local governments from banning licensed facilities, services, or the use of natural psychedelic substances. However, unlike Prop 122, it allows local governments to enact regulations around time, place and manner of operations.