This month, the Michigan Board of Canvassers approved a ballot initiative that asks the people of Michigan to decriminalize certain psychedelic plants and fungi. Titled the “Michigan Decriminalization of Psilocybin Mushrooms and Other Plants and Fungi Initiative,” (the “Initiative”) the proposal seeks to have Michigan join the ranks of states that have opened up their laws to allow for the use of naturally occurring psychedelics, sometimes called entheogens, and also proposes some interesting changes to the state’s drug laws that are not necessarily limited to psychedelic plants and fungi. The full text of the Initiative can be found here.
At the core of the Initiative is the addition of a section to Michigan’s Public Health Code that explicitly decriminalizes “the possession, use, cultivation, production, creation, analysis, giving away, and delivery by or between natural persons eighteen (18) years of age or older of psilocybin, psilocyn, ibogaine, mescaline, Peyote, and dimethyltryptamine” which the Initiative refers to as “natural plants and mushrooms.” The proposed new section – MCL 333.7462 – sets forth provisions applicable both to individuals over the age of 18 and to hospitals and psychiatric hospitals.
In addition to permitting individual use, the Initiative would also allow “the provision of supervision, guidance, therapeutic, harm reduction, spiritual, counseling, and related supportive services with or without remuneration by natural persons eighteen (18) years of age and older to natural persons eighteen (18) years of age or older who are engaging in the intentional and consenting use of natural plants and mushrooms.” This provision may harbinger the arrival of a new psychedelic-focused business model in Michigan. Specifically, the inclusion within Michigan’s statutory framework of an acknowledgment that natural plants and mushrooms may be part of the provision of therapeutic, spiritual or, for lack of a better term, wellness services—for pay—would provide a sound legal foundation upon which businesses centered around the psychedelic experience could be built. A major caveat found in the Initiative, however, is that in order to comply with the law, a business intending to provide such services would have to be designated by a qualifying hospital or psychiatric hospital for that purpose.
The Initiative does not flesh out how businesses would operate, or hospitals make allowance for them. This is a symptom of a wider issue with the Initiative, which is that the proposed new statutory language is relatively brief and thus does not provide the level of clarity or guidance that would-be participants may hope to see. Contrast the Initiative’s handful of pages with Oregon’s Psylocibin Services Act, which clocks in at more than 70 pages and sets forth detailed instructions for the establishment of a regulatory framework within Oregon’s Health Authority. Note, however, that Michigan law requires the entire text of an initiative to be included on a petition. It should also be noted that two Michigan State Senators co-sponsored a bill in September 2021 that, should it progress through the legislature, would provide a different path towards a legalized entheogen industry. The text of that bill, SB 0631, can be found here.
While the addition of MCL 333.7462 and the related definitional changes throughout the Public Health law are clearly the centerpiece of the Initiative, this ballot proposal also includes changes to the Public Health Law that, if adopted, would signal a significant policy shift by the State of Michigan with respect to the war on drugs. Numerous sections would be amended to dramatically reduce controlled substance-related penalties, lowering fines by orders of magnitude and changing minimum prison sentences from decades to months or less. Relatedly, the Initiative includes a change to the definition of the term “drug paraphernalia” to specifically exclude “testing equipment, products, or materials used, intended for use, or designed for use in identifying or in analyzing the strength, effectiveness, or purity of controlled substances.” This is a potentially life-saving change because it would make it easier for opioid users to have and use testing equipment that would allow them to identify whether the substance that they are about to use is tainted with fentanyl, and adjust their use accordingly. While there is some debate over the issue, the availability of such test kits is thought by many in the public health space to reduce unintentional fentanyl overdoses and deaths.
When all is said and done, the Initiative is a first step towards establishing the lawful use of certain psychedelics in Michigan. As more and more studies show that psychedelics can provide dramatic mental health benefits, particularly against major depression and PTSD, the Initiative would provide Michiganders with access to a simultaneously ancient and cutting edge addition to the mental health toolkit. To make the November 2022 ballot, proponents of the Initiative will need to file 340,047 valid signatures by June 1, 2022. Stay tuned for more updates and insights from Dykema as this exciting new field takes shape in Michigan and across the country.