Oregon’s Measure 109 allows for the manufacture, delivery, and administration of psilocybin, the compound found in “magic mushrooms.” But how was psilocybin made illegal in the first place? Originally, psilocybin was illegal under Oregon Revised Statute (ORS) 475.005. This law is Oregon’s “mini” controlled substances act. As in all other states, the Oregon law is based off the federal Controlled Substances Act (CSA).
Brief background on the CSA
In 1970, Congress repealed most federal drug laws and passed the CSA, to comprehensively prevent drug abuse and honor its international treaty obligations.
The CSA is most notably the law that prohibits even simple possession of marijuana, and the law has been controversial since its passage. Many still debate whether its actual purpose was pragmatic, or politically motivated. Those in the first camp note that there were numerous drug-related laws present between 1914 and 1970, consisting of an unwieldy patchwork of drug regulation. Accordingly, the CSA was ostensibly an effort to unite and merge “these diverse laws in one piece of legislation.”
In contrast, many argue the CSA, along with other federal laws, are tools created, or used, to destroy political and cultural enemies of the Nixon administration. Indeed, cannabis was prohibited by the CSA and a congressional committee found that the FBI had used “marijuana” charges to silence members of the “New Left.”
In 1994 John Ehrlichman, the counsel and Assistant to the President for Domestic Affairs under President Nixon, apparently substantiated such claims. In an interview, Ehrlichman discussed Nixon, who signed the CSA into law, and explained political motives of the administration:
“You want to know what this was really all about?” he asked with the bluntness of a man who, after public disgrace and a stretch in federal prison, had little left to protect. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
Whatever the purpose behind the CSA, psilocybin remains federally prohibited. Like cannabis, psilocybin is a Schedule I substance. The CSA categorizes controlled substances into five different levels, referred to as “schedules,” and ranks the regulation of the substances in each schedule. Schedule I is the highest rank and contains those substances with the strictest regulations. Schedule I controlled substances carry the highest restrictions, and penalties can be more severe those associated with fentanyl, heroin, and methamphetamine.
But why is psilocybin even in the CSA?
The short answer is “because it is a psychedelic.” Leading researchers in neuropharmacology and neuropsychopharmacology began studying psilocybin in the 1960s. The sought a treatment for depression, anxiety, and other disorders. Sandoz, a Swiss pharmaceutical company, even sold a psilocybin product called Indocybin in the US during this period.
Psilocybin and other hallucinogenic drugs were referred to as psychotomimetics back then, rather than psychedelics, and their clinical use was rapidly growing in the 1960s. Such studies were even funded by the US National Institute of Mental Health. However, the Food and Drug Administration (FDA) simultaneously began requiring pharmaceutical companies perform extensive studies to ensure their products are safe and effective. Due to the added cost of such studies, Sandoz opted not to pursue FDA approval of Indocybin.
At the same time, nonmedical use of LSD and related drugs increased sharply in the public. LSD, psilocybin, and cannabis soon were lumped together under the term “psychedelics.” These substances became popular and were associated with counter-culture movements. LSD garnered special attention, with sensationalized media stories labeling the substance the “insanity drug.” As a related drug, psilocybin developed a bad reputation based more on social lore and misinformation than actual clinical studies.
Consequently, the cost of the studies for FDA approval of psilocybin did not outweigh the apparent social and medical risks. Thus, psilocybin was not approved for therapeutic use by the FDA (although we may be getting closer) and was placed in Schedule I of the CSA.
The evolution of psilocybin laws in Oregon
Psilocybin’s placement in Schedule I is analogous to cannabis. Both apparently were placed in Schedule I due to a lack of understanding and clinical research, and also due to animus against targeted social groups. It makes sense, then, that psilocybin’s legal journey is following in the footsteps of cannabis. Both have been legalized to an extent in Oregon, even though they remain in Schedule I of the federal CSA.
In 1998, the Oregon Medical Marijuana Act became a law via Ballot Measure 67. A ballot measure, as opposed to a bill passed by a state’s congress, is a law passed by popular vote of a state’s citizens. Oregon citizens thus voted to allow the cultivation, possession, and use of marijuana by doctor recommendation for patients with certain medical conditions.
Likewise, Oregon citizens voted to pass Ballot Measure 109, which allows the manufacture, delivery and administration” of psilocybin. In the run-up to the vote on 109, we explained:
“… if you’ve been around this stuff for a while you might observe that the Initiative offers a structure similar to Oregon’s early-stage medical marijuana program. That program also: 1) was borne of an initiative back in 1998; 2) was solely administered by OHA (through its predecessor); 3) reduced criminal penalties; and 4) created a doctor-patient-caregiver program similar to the facilitator-client concept on offer for psilocybin. It appears that the Initiative’s chief petitioners are wisely working off the model.”
What’s next for Oregon psilocybin
Currently, the Oregon Health Authority (OHA) is establishing rules and regulations for the manufacturing, transportation, delivery, sale, and purchase of psilocybin products and the provision of psilocybin services. The OHA plans to finalize initial regulations for psilocybin services in 2022. To learn more about the development of these regulations, you can visit the OHA website here.
A year from now, if all goes well, the OHA will be taking applications for Oregon psilocybin licensees. Concurrently, we expect the Oregon Board of Pharmacology to vote to amend Oregon’s drug schedules and reschedule psilocybin locally, as it did with marijuana long ago. Stay tuned.