In November 2020, Oregon voters passed Measure 109, which directs the Oregon Health Authority (OHA) to license and regulate the manufacture, delivery, sale, and administration of psilocybin. Licensing is set to kick off in early 2023. Things remain on track.
We’ve written a lot about Measure 109 here on the Psychedelics Law Blog, including: 1) the welcome fact that localities are prohibited from developing their own licensing programs under the regime, but also 2) the (perhaps unwelcome, but inevitable) fact that cities and counties are allowed to “opt out” of regulated psilocybin altogether. This means any city or county is allowed to prohibit OHA psilocybin licensees from setting up shop within its borders. Several rural counties, in particular, are gearing up to do so.
Note that under Measure 109, cities and counties are automatically “opted in” to the psilocybin program unless local voters decide otherwise. This decision cannot happen at any random point in time. Instead, the city or county must present a ballot measure to its voters for consideration during a statewide general election. The next statewide general election is November 8, 2022. Anyone interested in Oregon psilocybin should have that date calendared.
Pursuing an “opt out” ballot measure requires several steps, even prior to filing a ballot title with the county clerk by the required August 19 deadline. The Association of Oregon Counties, for one, encourages county boards of commissioners to work with county counsel and planning department staff to determine the best path forward.
Before going further, readers should also understand that cities and counties in Oregon operate under distinct legal regimes. For example: Bend, Oregon is a city within Deschutes County, Oregon. If Deschutes County were to “opt out” of psilocybin, this would not affect Bend’s status, or the status of any other incorporated city within Deschutes County. Bend et al. would remain “in” unless those cities separately opted out, similar to the unincorporated areas of the County.
Finally, we’ve fielded a few inquiries already as to the “legality” of the opt-out under the measure. This isn’t a new analysis. We recall dealing with opt-out in controlled substances going back to the early recreational cannabis days of 2015. Back then, we wrote:
Several of my clients currently scouting anti-cannabis locales have asked me whether the opt-out provisions of HB 3400 are “legal.” The answer is yes, almost certainly. Can lawsuits be brought against those locales? Yes (this is America). Will the lawsuits succeed? Probably not, although it depends on the scope of the ordinance at issue and how well it is drafted (the LOC templates look pretty good). At the end of the day, Oregon is a “home rule” state and cities and counties are allowed to make rules without permission from on high, so long as those rules are not incompatible with state law.
Fast forward to the present, where we have been working with a growing number of clients who are gearing up for Oregon psilocybin licensing. As such, we’ve been tracking “opt out” signals in many cities and counties around the state. The following is a current status list of potential “opt out” votes in some of the more notable Oregon jurisdictions. We present this list in no particular order, with the strong caveats that 1) businesses should do their own research, and 2) this list is non-exhaustive, and 3) this list is effective July 10, and very fluid.
- Albany and Linn County: County planning on vote, Albany City Council to discuss vote at a future meeting
- Baker City and Baker County: Baker City Council reviewing a vote at meeting on 7/12; Baker County will vote on 7/20
- Beaverton: City plans on holding a vote, hearings planned with first reading of ballot measure at city council meeting on 7/19 with published Thursday before. City working with county and state to proceed with vote
- Bend and Deschutes County: No plans for a city vote; County Commission will have an opt-out hearing 07/13.
- Corvallis: Vote discussed by City council in June, but currently no plans for a ballot measure. City Attorney bringing additional psilocybin information to next city council meeting
- Eugene: Vote is unlikely
- Grants Pass and Josephine County: County plans to measure on ballot opting out of production and psilocybin treatment centers. Grants Pass City Council to decide soon whether to consent to county ordinance
- Hillsboro: Will be discussed at city council meeting on 7/19, then a discussion regarding whether to proceed with a vote
- Klamath Falls: City council meeting on 7/18 to discuss going forward with a vote
- La Grande: Discussions for a vote under way; no decisions have been made
- Medford: Will be discussed at city council meeting on 7/21
- Ontario and Malheur County: County planning on vote; county officers instructed to proceed though nothing drafted yet
- Pendleton and Umatilla County: County commissioners unanimously voted on July 5 to ban psilocybin manufacturing and service centers. Pendleton has not responded to requests for information, although that City initially opted out of cannabis, only to come back into the fold a few years later
- Portland and Multnomah County: No plans for a vote
- Redmond: No plans for a vote
- Roseburg: Vote currently under consideration by the city council, and a memo with options to be presented at city council meeting on 7/11
- Salem and Marion County: City has no plans for a vote; county did not return request for information
Again, this list is not exhaustive. City officials from “major” jurisdictions like Gresham and McMinnville, for example, have not yet published information or responded to our inquiries. And as we wrote above, this is a very dynamic situation with changes certain to occur between now and November 8. For that reason, our constant advice to clients looking to lease or purchase real estate for OHA psilocybin activity–particularly in certain jurisdictions–has been: “beware.”
Ultimately, if your target jurisdiction opts in, please understand that other barriers could spring up. Cities and counties can promulgate “time, place and manner” ordinances around psilocybin, so long as those regulations are reasonable. In our experience from the cannabis game, localities have fairly broad discretion there. These fights can be costly.
And last of all, if your target jurisdiction opts out, don’t lose hope. As noted above, we’ve seen localities opt out (in the cannabis context) only to see the light and come back in sometime later. To that end, repeal of a psilocybin opt-out ordinance does not require an election. This means that even if local voters choose prohibition this November, a city or county has the ability to reverse course on psilocybin prohibition at any point.
So let’s see how it goes. In the meantime, feel free to contact us with any questions on the regulated Oregon psilocybin industry. It’s going to be a really interesting fall.