There is a lot of misinformation floating around online about SB-58, California’s newest psychedelics bill. Unlike the state’s last attempt, SB-58 went through both the state Senate and Assembly and is heading to Governor Newsom’s desk. So it makes sense to discuss what the bill does and doesn’t do. And no, it doesn’t legalize psychedelics. At least not in the way a lot of people think it does.
#1 California won’t be Oregon or Colorado anytime soon
In 2020, Oregon passed Measure 109, creating a regulated market for psilocybin. Oregon opted for a service center model, which means that people must take it at a licensed facility under the care of a licensed facilitator. We write about Oregon’s program a lot. Colorado is doing something similar, though with more psychedelics.
This isn’t happening in California. The Golden State’s psychedelic bill won’t create licensed service centers. In fact, it won’t create a regulated market at all – the closest it comes is to calling for a “workgroup” to study, among many other things, how to regulate psychedelics. This could take a long time to wrap up. SB-58 sets a January 1, 2025 deadline, but let’s get real, that’s probably not going to happen. As I pointed out more than a year ago, FDA approved psychedelics may beat states to the punch if they don’t act more quickly here.
All of this means that for now, drugs like LSD, DMT, psilocybin, and more will remain on schedule I of the state’s controlled substances law. So what will change? That brings me to my next point.
#2 The psychedelics bill doesn’t really legalize psychedelics
California’s psychedelics bill is somewhere between legalization and decriminalization. The closest it gets to legalization is setting legally allowable limits for possession, preparation, obtaining, or transportation of small amounts of certain psychedelics (not including peyote). These are mescaline (4 grams per person), DMT (one gram), psilocybin (1 gram), psilocyn (1 gram), and spores/mycelium that can produce allowable amounts of psilocybin. These provisions will only apply to persons over 21 and only after January 1, 2025. In any other circumstances, these substances are illegal. Giving these substances to minors can range from an infraction to a felony.
Notably too, the state won’t deem the following items to be paraphernalia: “any paraphernalia that is intended to be used to plant, propagate, cultivate, grow, harvest, compound, convert, produce, process, prepare, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body, any of the following substances: (A) Dimethyltryptamine (DMT). (B) Mescaline. (C) Psilocybin. (D) Psilocyn.”
So the state is kind of legalizing small amounts of these psychedelics for adults. How do adults get them?
#3 California won’t allow commercial sales of psychedelics
Unless another psychedelics bill is passed, SB-58 isn’t going to create a legal market to buy and sell psychedelics. The closest the bill gets is as follows:
Subsequent to the Legislature’s adoption of a framework governing therapeutic use of the substances described in subdivision (a), it is the intent of the Legislature that the transfer [DMT, mescaline, ibogaine, psilocybin, or psilocyn], without financial gain, in the context of therapeutic use, which includes facilitated or supported use, be decriminalized.
A few other definitions are key:
As used in this section, “facilitated or supported use” means the supervised or assisted personal use of [DMT, mescaline, ibogaine, psilocybin, or psilocyn] by an individual or group of persons 21 years of age or older, or the assisting or supervising of such persons in such use, within the context of spiritual guidance, community-based healing, or related services.
. . .
“Financial gain” means the receipt of money or other valuable consideration in exchange for the item being transferred.
. . .
“Personal use” means for the personal ingestion or other personal and noncommercial use by the person in possession.
To translate, there will be no service centers, and no retail opportunities. Instead, in the context of certain spiritual guidance or community-based healing (which likely would include religious practices), giving away the above substances could be deemed “decriminalized” even though they are still illegal. I say “could be” because, for reasons that don’t make any sense, the legislature decided to use the words “it is the intent . . . .” Why not just say “it is decriminalized?” Who knows.
It remains to be seen what position the medical board or equivalents for various therapists or other clinicians will take. They could easily just sit back and say that licensees cannot participate in this process, leaving this only to non-licensed persons. Only time will tell.
#4 Personal cultivation may be okay, but risky
While there is not going to be a broad commercial market, the law allows for cultivation of plants capable of producing DMT, psilocybin, or psilocyn. The problem for anyone willing to try this is that the “allowable amounts” of each substance are relatively low. It’s hard to preemptively predict the weight of psilocybin mushrooms produced by a spore kit, let alone the weight of the psilocybin itself. This is likely to lead to lots of legal quagmires.
#5 Nothing else is changing
This bill will not have any effect on federal law. It will not allow interstate transport to or from Oregon or Colorado. Basically think of any problem cannabis had in the early days, and this is what the status quo will be here.
For psychedelics advocates, California’s new psychedelics bill is a huge step in the right direction. But it certainly doesn’t go as far as those same advocates will like. Many things remain to be seen, like the effects on licensed professionals (as noted) and religious groups, among many other things. Stay tuned to the Psychedelics Law Blog for more updates.
