New York Psychedelics Legalization Has Strong Start in 2023
by Andrew Kingsdale
January 23, 2023
Alice in Wonderland statute in New York City’s Central Park
Two recent developments in New York—a new law on the books, and a revamped decriminalization bill—have laid the groundwork for legal psychedelics in the state.
First, on December 23, 2022, Governor Hochul signed into law Senate Bill S8618, which requires New York’s Department of Health to reschedule or remove from scheduling any controlled substance under New York State Controlled Substance Law (Article 33 of the Public Health Law) if the federal Drug Enforcement Agency reschedules or deschedules the same substance and if the Food and Drug Administration approves the same use. This mandatory rescheduling rule follows similar laws in approximately 20 other states. The new law has heightened importance in light of the FDA’s breakthrough therapy designations for MDMA– and psilocybin-assisted therapies.
Second, on January 4, 2023, New York State Assembly members Linda B. Rosenthal, Karines Reyes, and Jo Anne Simon introduced bill number A.114, proposing as “AN ACT to amend the penal law, the public health law, the labor law, and the vehicle and traffic law, in relation to legalizing adult possession and use of certain natural plant or fungus-based hallucinogens.” The bill defines “natural plant or fungus-based hallucinogens” as including:
(a) Dimethyltryptamine (some trade or other names: DMT);
(b) Ibogaine (some trade and other names: 7-ethyl-6, 6&, 7, 8, 9, 10, 2 12, 13-octahydro-2-methoxy-6, 9-methano-5h-pyrido {1′,2′:1,2} azepino {5,4-b} indole: tabernanthe iboga);
(c) Mescaline;
(d) Psilocybin; or
(e) Psilocyn.
as well as materials, compounds, mixtures, or preparations containing them. (A.114, proposed Penal Law section 223.00(1)(b).)
State-wide decriminalization would occur primarily by immediately removing these substances from the New York State Controlled Substance Law. Additionally, A.114 would add to the Penal Law a new Article 223 titled “NATURAL PLANT OR FUNGUS-BASED HALLUCINOGENS.” This new Article would expressly protect certain conduct by persons over the age of 21, including:
possession, use, cultivation, production, creation, analysis, gifting, exchange, or sharing by or between natural persons of twenty-one years of age or older of a natural plant or fungus-based hallucinogen.
(Proposed Penal Law § 223.05(1)(a).)
While the bill would not expressly allow sales of the natural plants and fungi, it does open the door to receiving “remuneration” for certain services. For example, no state or local law would be allowed to prohibit:
The provision of supervision, guidance, peers engaging in risk mitigation, religious, spiritual, or related supportive services with or without remuneration, by natural persons of twenty-one years of age or older to natural persons of twenty-one years of age or older who are engaging in the intentional and consenting use of natural plant or fungus-based hallucinogens;
(Proposed § 223.05(1)(b)) “Related supportive services” is not defined, but possibly could include therapy services such as allowed under Oregon law. (Another bill introduced last legislative session, A.8569, would have legalized and regulated the medical use of psilocybin, but that is not part of A.114.)
A.114 also would protect the administration of the fungi and plants for religious and “non-commercial” purposes, as well as certain “recreational” uses. It would protect:
The possession, use, cultivation, production, creation, analysis, administration, gifting, exchange and/or sharing of natural plant or fungus-based hallucinogens to natural persons of twenty-one years of age or older by a religious organization for religious and ceremonial use or other non-commercial organizations.
(Proposed § 223.05(1)(d).) Again, these terms are not defined, but possibly these references are an attempt to fill in for New York’s lack of a state-level equivalent to the federal Religious Freedom Restoration Act.
As for “recreational” uses, New York employers would not be allowed to discriminate against employees for “outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property.” (Proposed Labor Law Section 201-d(2).)
Finally, the bill would also protect “paraphernalia” related to natural plant or fungus-based hallucinogens, a broadly defined term including kits to cultivate and manufacture the substances and related products. (Proposed Penal Law § 223.00(2); 223.05(1)(c), 223.05(2), 223.05(3).)
At this writing, A.114 has been referred to the Assembly’s Health Committee. We will report on further developments as the bill progresses.
While Senate Bill S.8618 and Assembly Bill A.114 do not facilitate clinical research into psychedelics or create a framework for supported adult-use or therapy-related businesses (as in Colorado and Oregon), they do mark massive steps forward for New York’s acceptance of psychedelics and the potential future regulation of at least natural-based psychedelics.
This information is provided as a public educational service and is not intended, nor should be construed as, legal advice. For specific questions regarding cannabis, hemp or psychedelics laws in New York or California, contact the Law Offices of Omar Figueroa at 212-931-0420 or at 707-829-0215 or info@omarfigueroa.com to schedule a confidential consultation.