With election day less than 24 hours away, we wanted to provide a primer on Massachusetts Ballot Question 4, which, if you believe recent voter polls, may soon make the Commonwealth just the second state in the nation to stand up a licensed, medical-use market for certain psychedelic substances, namely, psilocybin and psilocyn (two substances founds in mushrooms) plus dimethyltryptamine, mescaline and ibogaine (“Natural Psychedelic Substances”). As explained in a prior post on this platform, to date, Oregon is the only state in the nation that currently operates a legal, medical psychedelic program, which is subject to the oversight of the Oregon Psilocybin Services section of the Oregon Health Authority.
Like the tightly regulated Oregon market, Ballot Question 4 proposes establishing a legal framework – known as the Natural Psychedelic Substances Act (the “Act”) – for the cultivation, processing and supervised administration of Natural Psychedelic Substances in the Commonwealth. The articulated core purposes of the Act are to establish compassionate and regulated access to specific psychedelic substances that show therapeutic potential in increasing well-being and improving mental health outcomes, while at the same time adopting a public health approach to such substances by removing criminal penalties for limited personal use by adults aged 21+.
Operationally, the Act contemplates that entities – known as Psychedelic Therapy Centers – would be authorized to provide natural psychedelic services, host administration sessions, and also cultivate/possess/purchase/process/sell Natural Psychedelic Substances in connection with providing natural psychedelic services to adults aged 21+. The Act defines “Natural Psychedelic Services” as certain services provided by a “Facilitator” – a licensed individual – to assist in an individual's consumption of a Natural Psychedelic Substance. The consumption of Natural Psychedelics Substances through a licensed Psychedelic Therapy Center would be under the direct supervision of a Facilitator and involve 3 required sessions:
- A preparation session - a meeting between a participant and Facilitator before an administration session;
- An administration session – a session held at a therapy center or other location permitted by regulation at which a participant consumes Natural Psychedelic Substances under the supervision of a Facilitator; and
- An integration session – a meeting between a participant and a Facilitator after the participant has completed an administration session.
Critically, the Act would establish within the Commonwealth a 5-member Natural Psychedelic Substances Commission (“Commission”) that would be charged with adopting regulations governing all aspects of the new medical market, including requirements for licensing, security, recordkeeping, education and training, health and safety, testing and age verification. Pursuant to the Act, the Commission must promulgate regulations concerning at least one Natural Psychedelic Substance no later than April 1, 2026, provided that regulations concerning all Natural Psychedelic Substances are promulgated no later than April 1, 2028. Under the Act, the Commission is required to begin accepting applications for licensure no later than September 30, 2026.
The Commission will consist of:
- One appointee by the Governor, who shall have a background in psychedelic research and science;
- One appointee by the Attorney General, who shall have a background in public safety;
- One appointee by the Treasurer, who shall have experience in corporate management, finance or securities; and
- Two appointees by majority vote of the Governor, Attorney General and Treasurer, 1 of whom shall have professional experience in oversight or industry management, including the provision of services, in a regulated industry, and 1 of whom shall have a background related to Indigenous or traditional uses of natural psychedelic substances.
The Treasurer shall designate the chair of the Commission, and commissioners shall generally serve for a 5-year term (though the terms of initial commissioners will be staggered) and shall be eligible for one additional 5-year reappointment term. The Commission is required to appoint an Executive Director, who shall be the executive and administrative head of the Commission. The Act would also establish a Natural Psychedelic Substances Advisory Board (“Advisory Board”) tasked with studying and making recommendations to the Commission on the regulation and taxation of Natural Psychedelic Substances. Apropos of the Commission's obligation to promulgate regulations, the Advisory Board would advise the Commission on a host of issues that will inform the Commission's rulemaking initiative, including:
- Accurate and culturally appropriate public health approaches regarding the use and effect of Natural Psychedelic Substances;
- Training and educational programs for the licensed entities and individuals including “Facilitators” – i.e., individuals licensed to supervise and facilitate administration sessions;
- Research related to the efficacy and regulation of Natural Psychedelic Substances; and
- Affordable and ethical access to such Natural Psychedelic Substances.
Finally, the Act would also:
- Prohibit the retail sale of Natural Psychedelic Substances to an individual for use at a location not approved by the Commission or for the purpose of consumption other than an administration session.
- Allow persons aged 21+ to grow Natural Psychedelic Substances in a 12-foot by 12-foot area at their home and use these psychedelic substances at their home, provided that the amounts possessed do not exceed the “personal use amounts” set forth in the Act for each of the five Natural Psychedelic Substances.
- Prohibit individuals under the age of 21 from using, purchasing, obtaining, cultivating, processing, preparing, delivering, selling or otherwise transferring any Natural Psychedelic Substances.
- Permit municipalities to impose reasonable “time, place and manner” restrictions on licensed facilities offering Natural Psychedelic Substances/Services, but municipalities may not ban those facilities within their borders.
- Permit private persons and entities to ban the consumption of Natural Psychedelic Substances on their property.
We will certainly update you after election day and, if Ballot Question 4 passes, opine on next steps toward rolling out this new medical use market in the Commonwealth.
Originally published 04 November 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
