By Courtney Barnes & Maeve Mariotti
On September 7, 2023, California became the first state to pass a psychedelics decriminalization measure through both chambers of the legislature. Senate Bill 58 now awaits the signature of the Governor, Gavin Newsom to become law.
If signed into law, the possession, cultivation, preparation, personal use, and transportation of specified quantities of psilocybin, psilocyn, DMT, and mescaline would become lawful effective January 1, 2025. The bill also establishes a working group to study and make recommendations on the creation of a regulatory framework governing the therapeutic and facilitated use of the above decriminalized compounds, as well as ibogaine. The working group is required to report their findings on such access models, among other areas of study, to the Legislature by the same 2025 effective date.
Originally introduced by Senator Scott Wiener in 2021 as Senate Bill 519, SB 58 has undergone many material and limiting amendments since its inception. Senator Wiener’s first attempt at psychedelics policy reform, SB 519, passed the Senate in 2021, but was withdrawn from consideration after all the decriminalization components were gutted from the bill in an Assembly committee. In December 2022, Senator Wiener reintroduced modified legislation to decriminalize psychedelics as Senate Bill 58.
One of the most notable differences between SB 519 (2021) and SB 58 (2023) is that SB 58 does not decriminalize MDMA, LSD, ketamine, or ibogaine. SB 58, as amended, also does not explicitly allow for group facilitation and sharing. MDMA, LSD, and ketamine – all synthetically produced compounds – were removed prior to the bill’s (re)introduction in 2022 as SB 58. SB 58 also expressly excludes synthetic analogs of DMT, psilocybin, psilocyn, and mescaline as well as any derivatives of the same produced using chemical synthesis. The language decriminalizing ibogaine and authorizing group use, however, was removed during this 2023 legislative session. With respect to facilitated or supported use of psychedelics without financial gain, the bill now provides that such activity will only be permitted after the Legislature adopts a framework for therapeutic use.
In addition to narrowing the number of compounds to be decriminalized, SB 58, as amended, provides the following reduced “allowable amount” (i.e., possession) limitations:
- Mescaline: 4 grams;
- Dimethyltryptamine (DMT): 1 gram;
- Psilocybin: 1 gram of psilocybin; or 1 ounce (about 28.35 g) of a plant or fungi containing psilocybin;
- Psilocyn: 1 gram of psilocyn; or 1 ounce (about 28.35 g) of a plant or fungi containing psilocyn;
- Spores and Mycelium: an amount capable of producing the allowable amount of psilocybin or psilocyn.
Notably, unlike most state controlled substance laws, which calculate penalties by using the weight of the entire “mixture or substance containing a detectable amount” of an illegal drug, the term, “allowable amount” as used in the bill, expressly “does not include the weight of any material of which the substance is a part or to which the substance is added, dissolved, held in solution, or suspended, or any ingredient or material combined with the substance as part of a preparation.” (emphasis added).
This means only the compound itself – not the chocolate bar, liquid solution, or other administration medium – should be measured in determining what constitutes an allowable amount. That said, it remains to be seen how law enforcement will effectively test and quantify this definition in the field.
In addition to decriminalizing noncommercial activity involving psychedelics, SB 58 took a critical step forward in harm reduction policy by removing drug testing and analysis equipment from the definition of paraphernalia in the State’s Health and Safety Code. Put simply, if the bill takes effect, it will no longer be a crime to possess and use drug testing equipment – one of the most impactful harm reduction tools available to consumers globally. The bill also explicitly provides that the definition of paraphernalia does not apply to equipment or other tools used for cultivating, processing, consuming, and storing such decriminalized psychedelics.
All eyes are on Governor Newsom as final approval of the psychedelics law awaits. Although Governor Newsom has not yet indicated if the bill will receive his signature, industry leaders are hopeful he will sign it, especially considering the extensive amendments the bill received, its approval by both chambers, and the precedent already set in Oregon and Colorado. We will continue to provide you with updates as we receive them.
