Congress May Have a Vision for Psychedelic Regulation in the US

Epstein Becker & Green

Originally published at JD Supra

The latest attempt to expand the psychedelic world is making its way through Congress. On September 21, 2023, Congressmen Robert Garcia (CA-42)  and Earl Blumenauer (D-OR) introduced the “Validating Independence for State Initiatives on Organic Natural Substances Act of 2023”. Aptly titled the VISIONS Act, this legislation would, if enacted, protect legal psilocybin use from federal law enforcement intervention in any state or locality where psilocybin is legally permitted. The language in the Act specifically states that it aims to prohibit any federal funds from being used to prevent any state or local government from implementing their laws to “authorize the use, distribution, sale, possession, research, or cultivation of psilocybin.” This would, in turn, close the significant gap that exists between state licit psychedelic businesses and state authorized medical marijuana businesses with respect to the risk of federal drug law enforcement.

The VISIONS Act also is a significant attempt to expand access to psychedelic use and treatment in the United States. Critics pan the bill as too slim, as it only includes psilocybin, but it is a monumental stride in an attempt to allow state psilocybin businesses freedom from some of the Schedule I federal tape that currently binds them. In contrast to attempts to de-schedule a particular substance, a process which can be challenging, uncertain, and potentially contingent on FDA-approval, this bill would create some immediate relief for businesses that provide psilocybin to individuals needing treatment in compliance with state law. Currently, psilocybin’s federal Schedule I classification prevents broad treatment and research of psilocybin, potentially inhibiting the understanding and utilization of the substance. However, some of the recent research on psilocybin usage is promising, indicating that the drug can be utilized with positive effect for individuals suffering from debilitating diseases, such as anxiety, depression, addiction (substance use disorder), and PTSD.[1] Some of the research also has shown that psilocybin has a low potential abuse rate.[2]

Currently, psilocybin treatment is legal in Colorado and Oregon. Massachusetts also recently introduced a bill to legalize psilocybin for therapeutic, spiritual, and medicinal purposes. Because the VISIONS Act would, if enacted, relate to any “unit of local government,” the efforts in several municipalities (e.g., Portland, ME, Berkeley, CA) to decriminalize or deemphasize enforcement of personal possession of psilocybin would also fall within the scope of the Act. Congressman Garcia stated that the VISIONS Act “empowers” states and localities against the federal government in an attempt to allow states to move forward in the industry and decriminalize psilocybin in the same way cannabis has been regulated. Further, according to Congressman Garcia, the Act seeks to bridge the gap between mental health care access, drug policy, and social equity.

Despite the parallels that exist between the VISIONS Act and the existing appropriations rider (known as the Rohrabacher-Farr amendments) that protects state marijuana businesses, there are some key differences between the two pieces of legislation. First, the VISIONS Act would limit the spending of any federal funds to interfere with state programs, and would protect medical, adult-use only, and general state decriminalization psilocybin programs. In contrast, the Rohrabacher-Farr amendments only apply to spending by the U.S. Department of Justice, of which the U.S. Drug Enforcement Administration is a component and are limited to protecting only state medical marijuana programs. Second, the VISIONS Act would, if enacted, apply to all U.S. states, commonwealths, and the District of Columbia, whereas the Rohrabacher-Farr amendments only apply to certain states and territories (albeit a significant number of them: the only states not included are Idaho, Kansas, and Nebraska).

It remains to be seen whether support for the VISIONS Act will gain the necessary traction in the coming months. Regardless, the legislation is an important signal of the federal branch’s interest in propelling changes to psychedelic drug regulation in the U.S., proving this will be an interesting area to watch in 2024 and beyond.

Madeline Dwivedi, a Law Clerk – Admission Pending – in the firm’s Washington, DC, office, contributed significantly to the preparation of this post.

[1] See, e.g., Stephen Ross, et al., Rapid and Sustained Symptom Reduction Following Psilocybin Treatment for Anxiety and Depression in Patients with Life-threatening Cancer: A Randomized Controlled Trial, 30 J. Psychopharmacology 1165, 1166 (2016); Robin Carhart-Harris, et al., Neural Correlates of the Psychedelic State as Determined by fMRI Studies with Psilocybin, 109 Proceedings of the Nat’l Academy of Sciences 2138, 2142 (2012); see also Matthew Johnson, et al., Pilot Study of the 5-HT2AR Agonist Psilocybin in the Treatment of Tobacco Addiction, 28 J. Psychopharmacology 983 (2014); Michael Bogenschutz, et al., Psilocybin-Assisted Treatment for Alcohol Dependence: A Proof-of-Concept Study, 29 J. Psychopharmacology 289 (2015).

[2] E.g., Matthew Johnson, et al., The Abuse Potential of Medical Psilocybin According to the 8 Factors of the Controlled Substances Act, 142 NEUROPHARMACOLOGY 143, 161 – 62 (2018).

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