EXCLUSIVE: Psychedelics Education, Rescheduling & Decriminalization As Seen By Fox Rothschild's Cannabis Partner

(Part two of a three-part series)

Previous story in the series: Fox Rothschild Cannabis Attorney Analyzes Psychedelics Regs And Changing Public Perceptions

Part one discussed the growth and specificity of psilocybin therapy as it becomes legalized in states, the potential parallels with cannabis legalization, and the need to educate people in what psychedelics actually do and don't do.

In terms of the educational component of psychedelics, some of the New York and Virginia bills go straight to rescheduling on a state level. While studies have been done and many are ongoing, all of these substances are still federally illegal. 

How does this situation compare to cannabis?

“If you see what’s happening federally in the US, people have talked about rescheduling cannabis for a long time. And it’s going nowhere,” Joshua Horn, attorney with Fox Rothschild’s cannabis practice told Benzinga. “So I guess a state can always reschedule on their own, because many states have their own version of the federal law, and have the possibility to do so.”

Horn says the difference between cannabis and psilocybin relies on the amount of research being done on behalf of publicly traded companies. “And so, maybe in that context of rescheduling, if you think it’ll ultimately be an FDA-approved drug, it will be more common, even on a federal basis,” he predicts, although rescheduling is still “a tough decision to take and see through to the end.”

Why? “It’s like people don’t wanna deal with it on a federal level, such as it happens with cannabis.”

But in the end, Horn believes that if most states have some form of legal cannabis and/or some form of legal psilocybin, then federal law becomes somewhat irrelevant.

“I think that’s largely happened for cannabis, and I think that will ultimately happen with psilocybin. I suspect it will take longer, again, because there’s the historical public perception of people tripping off on mushrooms and freaking out. I think it’s gonna be a slower process,” he said.

Decriminalization And Potential Discretionality

So how does the fact of not rescheduling coexist with the federally illegal status of psychedelics in practice? 

Could the decriminalization model leave room for police discretion? Horn believes it does. 

“I think decrim is important, because too many people, particularly people of color in the US, have been subject to a lot of prosecution,” he said. “For instance, where I am, in Philadelphia, Pennsylvania, cannabis is decriminalized and so people grow it on the street and aren’t really concerned about it. And so I think that’s important, but again, it’s still subject to the risk of law enforcement discretion depending on how the decrim looks like.”

In Philadelphia, it seems to be a matter of weight. For the psilocybin decriminalization model, he believes will bring about something more uniform in terms of weight/amount. “And so that way, you kind of take away the discretion because history’s shown to an extent that if there is room for discretion, people of color get unfairly prosecuted.”

The New Hampshire bill is a case of decriminalization where no advisory board nor service centers are requested. What would the characteristics of this approach be?

Horn believes states sometimes will adopt a bill that is not very specific, leaving it for later to figure out how it’ll roll out. “And typically what will happen there is they’ll set up some governmental authority to regulate it, which will in turn adopt regulations on how it should play out.”

So decriminalizing seems to act as a first step upon which state regulators assess how and if it will play out. And, should that process be favorable, the next step will likely be settling psilocybin clinics. “I think that’s part of the decision tree, the process: walk before you run, crawl before you walk,” Horn said.

Next up in the series: Social Equity, Adult Use Programs, Commercialization And Regulations For Psychedelics, Lessons From Cannabis