Colorado voters approved Proposition 122, or the Natural Medicine Health Act (“NMHA”) in November of 2022.[1] The goal was to make “Natural Medicine” (as defined in the NMHA) available to those who could benefit from is use. Natural Medicine under the NMHA includes dimethyltryptamine, ibogaine, mescaline (excluding peyote), psilocybin, or psilocyn.[2] On April 25, 2023, the Colorado Senate passed Senate Bill 23-290[3] (the “Bill”) which amends the NMHA in many ways. The Bill next must pass through the Colorado House of Representatives before it lands on Governor Polis’ desk. However, the House should revise the Bill further to more effectively conform to the fundamental purposes of the NMHA.
One of the main issues with the Bill is that it gives too much of the responsibility for administering the Natural Medicine program to the Department of Revenue (“DOR”). Specifically, the Bill creates a Division of Natural Medicine within the DOR that is tasked with “regulating and licensing the cultivation, manufacturing, testing, storage, distribution, transport, transfer, and dispensation of natural medicine or natural medicine product between natural medicine licensees.”[4] This will likely be tantamount to the establishment of the Natural Medicine equivalent to cannabis’ Marijuana Enforcement Division (“MED”).
What the Bill fails to contemplate is that Natural Medicines and marijuana are completely different compounds, they treat different health conditions, and they are produced and consumed very differently and in different settings. It is unwise to mirror the regulatory scheme that the State of Colorado, through the MED, uses for marijuana and apply that scheme to Natural Medicine.
In the ten years since the MED was established, its rules and regulations have been enforced selectively and inefficiently. There is little to indicate that a Natural Medicine enforcement arm of the DOR will fare any better. The NMHA requires, and deserves, a more thoughtful approach, which may necessitate a wholly new set of regulations and procedures to ensure the purpose of the NMHA is carried out in accordance with Colorado voters’ will.
If this Bill passes in substantially the form it is in now, the Natural Medicine industry will likely face high regulatory costs, as we have seen with cannabis. The DOR will need to establish a revenue stream from licensed Natural Medicine service providers in order to maintain the existence of a “Natural Medicine Enforcement Division” and the staff and administrative costs attendant to that agency. Such revenue will necessarily be derived from licensing fees, enforcement actions, and potentially a tax on commercial sale of Natural Medicine (as commercial sales become lawful over time).
High regulatory costs will prevent practitioners with fewer resources from providing crucial services to those who need them most, as those costs will ultimately be passed to patients/consumers; many who need Natural Medicine and Natural Medicine services will not be able to bear these costs. Perversely, Proposition 122, as passed by the voters, was never intended to favor the wealthy.
The Bill as originally drafted criminalized religious leaders and individuals from receiving remuneration in exchange for services or rituals provided in conjunction with Natural Medicine.[5] To their credit, the Senate recognized that the original draft missed the mark, and the Bill was amended over the days following its announcement, the Bill as passed by the Senate on April 25 allows facilitators of religious, cultural, or spiritual to be compensated so long as the “ceremony is not associated with commercial, business, or for-profit activity.”[6] This amendment is more flexible than the firm prohibition that was in the initial draft of the Bill, but it is still broad enough to criminalize religious or spiritual leaders who accept compensation for their services. What constitutes “for-profit” is not defined in the Bill and will inevitably end up tested in court.
Yet another shortcoming of the original Bill was its restriction on remuneration for bona fide harm reduction services and support services. After much public outcry, the Bill as passed included an amendment expressly permitting remuneration for bona fide harm reduction services and bona fide support services.[7] This amendment is crucial to the success of the NMHA. Compensating service providers for their time, effort, and compassion was among the chief goals of Proposition 122. Providing care to patients with the use of Natural Medicines is a time intensive process, and requires preparation, training, commitment, skill, and deep-rooted knowledge developed over years or decades.
Prohibiting such compensation would have led to two suboptimal outcomes: (i) patients and consumers in need to Natural Medicine services will not be able to obtain the care they need; and (ii) service providers who do not or cannot get licensed by the DOR, but who provide Natural Medicine services otherwise allowed under Proposition 122 will operate underground, fueling an illicit market. Now that service providers can be compensated, there will be less of a need to go underground, and more patients can receive the care they need. However, the issue still remains that these service providers will need to jump through DOR’s hoops in order to become licensed, which will be cost-prohibitive, and only then will they be eligible to be compensated for their services.
Finally, the Bill enumerates crimes and fines for those using and cultivating Natural Medicine.[8] The Bill specifically authorizes fines of up to $1,000 if a person cultivates Natural Medicine on a larger than 12ft by 12ft space, or if the cultivation area is not “enclosed and locked.”[9] These additional penalties further no legitimate purpose. The limitation on square footage allowed for the cultivation Natural Medicines on private property only serves to deprive people the benefits of Natural Medicine.
If someone has the knowledge, skill, and desire to cultivate Natural Medicines on their property, and give medicine away to those of age and in need, then they should have every right to do so. Instead, the Bill renders such activities illegal. Proposition 122 contained no such restriction on private property owners. Furthermore, enforcing the 12ft by 12ft rule will be needlessly tedious and waste resources for both local law enforcement and those cultivating Natural Medicine on their property. The Bill creates more problems than it solves with these penalties and fines for trivial matters, and Colorado voters did not approve such penalties and fines when they passed Proposition 122.
The House now has its chance to reform the Bill. The first goal should be to create a system with meritorious distinction from the MED’s for licensing, cultivating, manufacturing, testing, administering, and distributing of Natural Medicines. The House should also seek to limit the new criminal penalties enumerated in the current draft of the Bill. Finally, the House should look to the original purpose of Proposition 122 to serve the will of Colorado voters. Proposition 122 is not perfect, and legislation to improve on it and ensure patients and consumers have access to safe and effective medicine and well-trained service providers is imperative. This Bill however, seems hastily drafted and falls short.
[1] https://dpo.colorado.gov/dpo-home/natural-medicine-health-act-home
[2] Natural Medicine Health Act of 2022, at 3, https://www.sos.state.co.us/pubs/elections/Initiatives/titleBoard/filings/2021-2022/58Final.pdf
[3] SB23-290, as passed on April 25, 2023, https://www.statebillinfo.com/bills/bills/23/2023a_290_ren.pdf
[4] Id. at 2.
[5] SB23-290, April 17, 2023, Draft, at 25, https://drive.google.com/file/d/1UMIYzVUFPR4LM_Z0pn2MT8j7UfMsxTPw/view
[6] SB23-290, as passed on April 25, 2023, at 25, https://www.statebillinfo.com/bills/bills/23/2023a_290_ren.pdf
[7] Id. at 81.
[8] Id. at 74.
[9] Id. at 75.
