“I think that’s probably not going to be a good look when the voters decide that they still want this program.”
By Mike McInally, Oregon Capital Chronicle
On a recent Monday evening, as a heatwave broiled Philomath, elected officials debated what’s been a hot topic this summer throughout Oregon cities and counties: Should they opt out of Measure 109, the initiative legalizing limited use of the hallucinogen psilocybin, before it goes into effect next year?
Measure 109, which was approved by voters statewide in 2020 by nearly 56 percent of the vote, automatically opts in local governments in Oregon. But it also includes a process through which cities and counties can back out. Local officials can decide to refer to voters either a two-year moratorium or an outright ban on psilocybin services.
But those opt-out measures must be on the November 2022 general election ballot, and the deadline for getting them on the ballot is August 19.
That’s why cities and counties throughout Oregon such as Philomath are wrestling with these questions: Do nothing, and let Measure 109 take effect? Or give voters another chance to ban or delay psilocybin services in their community?
The measure will allow the use of psilocybin starting in 2023, making Oregon the first state to legalize its use. But the law restricts use to state-licensed facilities with trained counselors administering the drug. It does not create a market for psilocybin, and possession, consumption and manufacturing of the drug outside licensed facilities will remain illegal.
Backers say it could aid thousands of Oregonians with mental health conditions who’ve not been helped by other therapies.
Yet about two-thirds of Oregon’s 36 counties will ask voters in November whether to ban the treatment centers or enact a two-year moratorium. The results of that vote could create a patchwork of treatment centers, potentially undermining the rollout of the law, supporters say. Bans and moratoriums on treatment centers also could force thousands of residents to travel many miles to take the drug.
In recent weeks, more than a dozen jurisdictions ranging from Ontario to Toledo and Jackson to Coos counties have referred a ban to their voters. Other jurisdictions are opting for the two-year moratorium, reasoning that the delay will give them an opportunity to examine rules being written by the Oregon Health Authority governing the program’s rollout. Proponents of the moratoriums argue that the two years will let officials work on locally generated “time, place and manner” regulations, which would spell out in detail how and where psilocybin services can develop in each locality.
Other communities, such as Ashland, have opened the door to psilocybin, a naturally occurring hallucinogen that’s produced by more than 200 species of fungi. Psilocybin supporters, such as Sam Chapman, executive director of the Healing Advocacy Fund, point to research suggesting that the substance could have a huge role to play in treating mental health issues such as depression, anxiety and post-traumatic stress disorder. The Healing Advocacy Fund is a nonprofit organization supporting the implementation of Measure 109.
Many other communities continue to grapple with the issue, even as the deadline draws closer.
Council sharply divided
During that meeting in Philomath councilors had little appetite for letting Measure 109 simply go into effect. But the council was sharply divided on whether to refer to voters a ban or a two-year moratorium. Proponents of a moratorium pointed to psilocybin’s potential, but worried about future regulations, leaving unknowns about how the measure will play out.
Councilors pushing for a ban raised worries about how the program could affect public safety and noted that the town’s police chief supported a ban, especially as his department and law officers throughout the state were still working through the implications of Measure 110, which decriminalized possession of small amounts of certain drugs, including psilocybin, for personal use. Measure 110 also passed in 2020.
Complicating the discussion was this: Philomath voters approved Measure 109 by more than 500 votes, a 17 percent margin. After a tense but civil hours-long discussion, which included a brief debate about whether the city manager should be allowed to weigh in (the city attorney approved and the manager advocated for a ban), the council voted, 4-3, to forward a two-year moratorium to voters.
Other jurisdictions have been less divided. For example, Linn County commissioners recently voted unanimously to send a proposed ban to voters. Linn County was among the 21 counties statewide—mostly in eastern and central Oregon—in which voters opposed Measure 109.
Roger Nyquist, the longtime chair of the Linn County Board of Commissioners, said it was an easy call. He noted that psilocybin, like marijuana, is banned by the federal Drug Enforcement Administration as a Schedule I drug—one the government says comes with a “high potential for abuse and the potential to create severe psychological and/or physical dependence.”
Nyquist said Linn County commissioners also were concerned about what he called the state’s “botched” rollout of legalized marijuana. “I have no confidence that they’ll get this thing right,” he said, referring to the Health Authority’s current rulemaking process on psilocybin. “We ought to get the marijuana program stable and rational before we move on to other stuff.” The state’s marijuana industry has suffered from oversupply and a decline in demand while police continue to investigate illegal grow operations.
Chapman told the Capital Chronicle it was important to Measure 109’s creators to give localities the opportunity to opt out.
“It’s not surprising to me that there are a handful of cities and counties that voted against Measure 109 and still don’t want it in their community,” Chapman said. “That’s totally fair. That makes sense to me. And they should have that ability.”
Chapman isn’t as sympathetic to officials in areas that supported Measure 109 and now are considering bans or moratoriums.
“What doesn’t make sense to me is elected officials who know how their county or city voted on Measure 109 refusing to educate themselves on the issue and then sending it back to the voters. I think that’s probably not going to be a good look when the voters decide that they still want this program.”
Program rules not finalized
The rules are not expected to be finalized until December, and the program will be launched in January, with the Health Authority taking applications for treatment centers on January 2.
Attorney Brett Mulligan, who focuses on the cannabis and psychedelics industries at the Portland-based Green Light Law Group, said some local officials want to impose a moratorium or a ban “as an off-ramp to give them more time” to see how the program rolls out.
Chapman rejected that reasoning, noting the Oregon Psilocybin Advisory Board, which advises the Health Authority, provided its final set of recommendations at the end of June—and estimated that 90 percent of the board’s recommendations have been codified in the state rules.
“I know for a fact that the Oregon Health Authority has attempted to engage local governments over this rulemaking process,” Chapman said, but many of those governments didn’t start working on the issue until about six weeks ago. “I think a lot of what we’re seeing here is the realization that they know they have very little time to educate themselves on this issue… It’s not an excuse to say that I haven’t done my homework on this issue, and therefore, I’m going to ask our local residents to vote twice on an issue that they clearly decided on the first time.”
Chapman and Mulligan said misconceptions about Measure 109 abound. For example, the measure only allows psilocybin sales to licensed service providers, not to individuals. And the facilities can only treat adults over 21.
The service centers are not likely to be as visible as marijuana dispensaries, according to a recent report from the Association of Oregon Counties. Chapman said a typical psilocybin service center might be in the offices of existing licensed mental health professionals who are looking for another treatment tool.
Chapman is worried about statewide access to psilocybin. If, as appears likely, big chunks of eastern Oregon ban or opt out of authorizing psilocybin treatment centers, a resident of those areas seeking a psilocybin session may have to travel hundreds of miles and incur substantial costs beyond treatment fees.
Mulligan sees another potential barrier: Insurance companies are unlikely to cover the costs of psilocybin treatment in the short term.
In a recent blog, Mulligan said regulatory and capital barriers are “already pricing out small and medium-sized businesses” that might be interested in psilocybin services, creating a situation where “only the most well-capitalized businesses can enter the industry.”
Some international companies have eyed Oregon since the passage of the law, including the Synthesis Institute, which is based in The Netherlands. Last year, it bought Buckhorn Springs Resort outside Ashland, hoping at least in part to use it as a psilocybin treatment center in 2023, according to news reports. Some Oregon advocates don’t want big companies dominating the market, potentially making access inequitable for low-income Oregonians.
Chapman said his group is trying to head that off: “We understand that it’s really on us to ensure that there is affordable access to services in the first couple of years.”
During a recent Benton County Board of Commissioners meeting, Chapman said if the clientele for psilocybin services turns out to be “just a bunch of wealthy white people from outside the state of Oregon, this program will have been a failure.”
As interest in psilocybin and other hallucinogens grows, with best-selling books and television documentaries, Oregon’s experiment in providing these services will be closely watched nationwide, especially by states considering a similar law.
Psilocybin programs that violate federal sanctions set states on a crash course with the federal government. Eventually, Mulligan predicted, psilocybin will prevail: “Federal law is evolving to where I think we will see some sort of federally sanctioned psilocybin programs, maybe not a few years from now, but I think we will see that eventually.”
Voters in at least two-thirds of Oregon’s 36 counties will decide this November on measures to ban or delay for two years the development of psilocybin service centers.
As of early August, 24 counties—including four in which voters in 2020 approved Measure 109, which allowed the use of psilocybin in clinical settings—have placed opt-out measures on the ballot or are doing so.
Eight counties have chosen not to refer an opt-out measure to the ballot. In those counties, Measure 109 will go into effect in 2023, although cities and counties can regulate the service centers.
Four counties are undecided. The deadline to place a measure on the general election ballot is August 19.
Here is a list of where Oregon counties stand, based on reporting by the Capital Chronicle and other news outlets:
Counties in which Measure 109 passed that are referring opt-out measures to the November ballot:
Clackamas, Clatsop, Deschutes and Jackson.
Counties in which Measure 109 failed that are referring opt-out measures to the November ballot:
Baker, Coos, Crook, Douglas, Gilliam, Grant, Harney, Jefferson, Josephine, Klamath, Lake, Linn, Malheur, Marion, Morrow, Polk, Tillamook, Umatilla, Union and Wallowa.
Counties that are not placing a measure on the ballot and will allow Measure 109 to go into effect (Measure 109 passed in all these counties):
Curry, Hood River, Lane, Lincoln, Multnomah, Wasco, Washington, Yamhill.
Counties that are undecided:
Benton, Columbia, Sherman and Wheeler. (Measure 109 passed in Benton and Columbia counties and failed in Sherman and Wheeler counties.)
Nearly 20 cities and towns are referring opt-out measures to the November ballot based on reporting by the Capital Chronicle and the League of Oregon Cities:
Baker City, Central Point, Cottage Grove, Culver, Hermiston, Keizer, La Grande, Lebanon, Molalla, Newberg, Nyssa, Ontario, Pendleton, Phoenix, Philomath, Sandy, Seaside, Toledo, Vale.