Colorado Prop 122
Colorado Prop 122 or the Natural Medicine Health Act is a statewide measure to create access to natural psychedelics in a healing context.
Learn about this statewide measure and how it creates access to natural psychedelics. This article discusses Colorado Proposition 122 from an information, public policy, and harm reduction standpoint. The information shared here should not be misconstrued as legal advice.
INTRO TO THE NATURAL MEDICINE HEALTH ACT
Colorado Prop 122 and SB23-290
In November of 2022, Colorado Proposition 122, also known as the Natural Medicine Health Act (NMHA) passed with 53.6% of voters opting to decriminalize natural psychedelic medicines. Natural medicines include psilocybin mushrooms, DMT containing plants, ibogaine and mescaline containing cacti, excluding peyote (Lophophora williamsii varieties).
The only form of mescaline that is decriminalized is sourced from the San Pedro cactus. In the regulated model, natural medicines only include psilocybin and psilocin at this current moment.
On May 2, 2023, the Colorado Legislature passed SB23-290, the formal implementation bill for Proposition 122. The full text of Colorado’s SB23-290 bill can be found below.
Colorado Prop 122 has officially decriminalized the possession, sharing, ingestion and purchase of natural psychedelics, for use in personal and community healing. You are not permitted to receive anything of value in exchange for sharing these medicines. The sharing of these medicines cannot be commercialized under the personal use model. In terms of exceptions for purchasing natural medicine, those who engage with the regulated market can purchase from healing centers. Community healers can also purchase these products. No person under the age of 21 is protected under the proposition.
Prop 122 has also decriminalized the cultivation and processing of natural psychedelic medicine for personal and community healing. People in Colorado are legally allowed to possess mushroom grow kits and psilocybin spores and isolated cultures.
"On April 18, 2023, Colorado Senate President Steve Fenberg introduced CO SB23-290 to implement Colorado’s Natural Medicine Health Act with fidelity. This 90-page bill replaces and restates almost all of the NMHA. Although the bill started off with a couple of policy positions that were antithetical to the voter-initiated act, after a series of amendments and a lot of work by Colorado activists and lawyers, it seems clear SB23-290 builds off the intent of the NMHA to create a natural psychedelic ecosystem in Colorado based in equity and safety. As of the time of this writing, the bill has passed both the Colorado House and Senate and is awaiting signature by Governor Polis."
- Vicente LLP (jdsupra.com)
KEY ASPECTS OF SB23-290
What You Should Know
Indigenous Focus
Section 12-170-107 of SB23-290 establishes the Federally Recognized American Tribes and Indigenous Community working group with the objective of fostering dialogue to address concerns related to the commercialization of natural medicine.
The primary goals of this working group include:
Preventing the appropriation and exploitation of federally recognized American tribes and Indigenous people, their communities, cultures, and religions.
Ensuring responsible commercialization of natural medicine, including natural medicine products and services.
Addressing conservation issues that may arise from the legalization and regulation of natural medicine, such as the potential further depletion of peyote, a source of mescaline.
Promoting best practices and transparent communication to establish trust between federally recognized American tribes, Indigenous communities, and the regulatory bodies and officials responsible for implementation, licensing, and enforcement.
Regulatory Changes
In contrast to the NMHA, which designated the Department of Regulatory Agencies (DORA) as the entity responsible for all rulemaking and implementation, this bill establishes a distinct Division of Natural Medicine (DNM) within the Department of Revenue (DOR). The primary purpose of the DNM is to oversee the regulation and licensing of various aspects of natural medicine, including cultivation, manufacturing, testing, storage, distribution, transport, transfer, and dispensation, all of which involve interactions among natural medicine licensees.
Under the provisions of the bill, the DNM is tasked with the following responsibilities:
Regulating natural medicine, natural medicine products, and the businesses involved in natural medicine, including healing centers, cultivators, manufacturers, and testers, and issuing licenses for these entities.
Creating and enforcing the necessary rules for the proper regulation of natural medicine and related businesses.
Carrying out all duties essential for the regulation of natural medicine, natural medicine products, and related businesses, which includes investigative and disciplinary authority.
It's important to note that the bill retains the responsibility of licensing facilitators with DORA, along with the task of establishing rules for their regulation and the practice of facilitation.
Additionally, DORA will continue to oversee and provide support for both the Natural Medicine Advisory Board and the newly established Tribal and Indigenous Working Group.
Rulemaking
SB23-290 grants the newly established Division of Natural Medicine (DNM) and the Director of the Division of Occupations within the Department of Regulatory Agencies (DORA) the explicit authority to establish rules governing the regulated access program for natural medicine. This change provides agency leaders with clear and definitive rulemaking authority, particularly for crucial aspects of the program.
Simultaneously, the bill introduces two distinct funds:
The Natural Medicine Facilitator Cash Fund, which falls under the jurisdiction of DORA.
The Regulated Natural Medicine Cash Fund, which operates under the Department of Revenue (DOR).
These funds are established to manage financial matters associated with the regulation and oversight of natural medicine and related facilitation services, providing a structured framework for financial transactions within their respective departments.
Natural Medicine Advisory Board
The bill maintains and makes slight modifications to the Board as initially outlined in the NMHA. The Board's responsibilities have been expanded to include the examination of issues related to natural medicine and natural medicine products. It is now empowered to provide recommendations to both the Director of the Division of Professions and Occupations and the Executive Director of the state licensing authority. Furthermore, the Board has a clear mandate to address matters pertaining to equity, tiered facilitator training, and other crucial elements of the program.
Licensing
SB23-290 extends the timeline for accepting license applications for new licenses, registrations, permits, or certificates until December 31, 2024. The DNM is instructed to prioritize application processing for individuals who have established residency in Colorado. Eligibility requirements and privileges under these licenses, registrations, permits, or certificates will be determined by the DNM. The bill maintains the previous limitation of five Healing Center Licenses per person but now applies this limitation to any natural medicine business license.
1,000-Foot Distance Requirements
The bill prevents the State Licensing Authority from considering an application for the issuance of a Natural Medicine Business License if the location where natural medicine services are provided is within 1,000 feet of a childcare center, including residential childcare facilities, preschool, elementary, middle, junior, or high school. Local authorities have the discretion to adjust these setback requirements.
No Professional Degree Requirement Unless Licenses are Tiered
The bill specifies that the qualifications for individuals to become facilitators do not necessitate a professional license or professional degree, aligning with the NMHA. Instead, facilitators are required to have education and training in various areas, including participant safety, drug interactions, contraindications, mental and physical health considerations, social and cultural factors, preparation, administration, integration, and ethics. Additionally, SB23-290 introduces new safety measures regarding physical contact during natural medicine services, including obtaining informed consent and allowing participants to withdraw consent at any time.
Telehealth
The bill permits the consideration of conducting preparation, administration, and integration sessions through Telehealth methods.
Ibogaine
SB23-290 prohibits the sharing of ibogaine with another person. The Board is authorized to prioritize its inclusion in the regulated model and may recommend this action before June 1, 2026, subject to the approval of the director and executive director of the state licensing authority (DOR).
Taxes and Testing
The bill aligns state income tax code with federal law by allowing taxpayers licensed under the "Colorado Natural Medicine Code" to subtract expenses disallowed under section 280E of the Internal Revenue Code (IRC), similar to how taxpayers under the "Colorado Marijuana Code" are permitted. SB23-290 mandates coordination between the DOR and the Colorado Department of Public Health and Environment (CDPHE) concerning testing standards and certification requirements for regulated natural medicine and natural medicine products. The DOR is also given the authority to establish rules pertaining to licensed laboratories testing personal use products.
Personal Use
SB23-290 does not impose any specific limitations on personal possession, with the exception of a 12-foot by 12-foot cultivation limit. Local governments have the authority to waive this limit.
"Personal Use" does not encompass the sale of natural medicine or natural medicine products for remuneration or sharing natural medicine as part of a business promotion or commercial activity. However, the bill allows for remuneration in the context of bona fide harm reduction services or bona fide support services used concurrently with the sharing of natural medicine or natural medicine products. Importantly, the bill prohibits any advertising related to the sharing of natural medicine, natural medicine products, or the services provided.
Unlawful Acts
SB23-290 addresses various unlawful activities, aligning with the principles of NMHA:
Individuals under 21 are prohibited from possessing or using natural medicine and may face fines up to $100 or be required to attend four hours of substance use education or counseling.
Open and public consumption or display of natural medicine or natural medicine products is considered a petty drug offense, resulting in fines of up to $200 and up to 24 hours of useful public service.
Cultivation of natural medicine is allowed only on private property in an enclosed, locked area no larger than 12 x 12 feet. Violations are subject to fines of up to $1,000.
Unless expressly limited, individuals who possess, consume, share, cultivate, or manufacture natural medicine or natural medicine products for personal use without remuneration do not violate state or local law. However, distribution for certain unlawful purposes is explicitly prohibited.
Testing is explicitly permitted for personal use if there are signed waivers stating that the products are intended solely for personal use.
The criminal restrictions on display, cultivation, and sales do not apply to commonly and lawfully sold living plants cultivated for ornamental purposes only.
Law enforcement officers are prohibited from arresting, and district attorneys are prohibited from charging or prosecuting individuals for criminal offenses involving natural medicine or natural medicine products, unless expressly provided by the bill.
Lawful actions related to natural medicine or natural medicine products should not be the sole reason for imposing civil penalties, denying rights or privileges, or seizing assets.
Lawful actions related to natural medicine or natural medicine products should not be the sole factor in determining probable cause or reasonable suspicion of any criminal offense. However, they may be considered in such determinations if the original stop or search was lawful and other factors support a probable cause or reasonable suspicion determination of a criminal offense.
Record Sealing
In line with the vision of NMHA, the bill allows individuals to file motions to have conviction records related to natural medicine or natural medicine products sealed. This eligibility occurs immediately after the later date of the final disposition or release from supervision.