In November 2022, Colorado voters passed the Natural Medicine Health Act (NMHA), a groundbreaking law to establish access to natural psychedelic medicines for adults 21 years and older. The objective of the NMHA was to provide safe and equitable access to natural psychedelic medicine to all adult Coloradoans who may need it.
The NMHA had two primary parts:
On April 18, 2023, Colorado Senate President Steve Fenberg introduced CO SB23-290 to implement Colorado’s Natural Medicine Health Act with fidelity. This 90-page bill replaces and restates almost all of the NMHA. Although the bill started off with a couple of policy positions that were antithetical to the voter-initiated act, after a series of amendments and a lot of work by Colorado activists and lawyers, it seems clear SB23-290 builds off the intent of the NMHA to create a natural psychedelic ecosystem in Colorado based in equity and safety. As of the time of this writing, the bill has passed both the Colorado House and Senate and is awaiting signature by Governor Polis.
To read more about the process of amending SB23-290, please see read these Vicente Insights articles.
Section 12-170-107 of SB23-290 establishes the Federally Recognized American Tribes and Indigenous Community working group “for the purpose of engaging and creating dialogue to identify issues related to the commercialization of natural medicine.” The main objectives of this working group will be:
Division of Natural Medicine
A deviation from the NMHA, which appointed the Department of Regulatory Agencies (DORA) as responsible for all rulemaking and implementation, the bill creates within the Department of Revenue (DOR) the Division of Natural Medicine (DNM) for the purpose of regulating and licensing the cultivation, manufacturing, testing, storage, distribution, transport, transfer, and dispensation of natural medicine or natural medicine product between natural medicine licensees. The bill requires the DNM to:
The bill leaves licensing of facilitators as a responsibility of DORA, as well as the promulgation of rules necessary for the regulation of facilitators and the practice of facilitation. DORA will also continue to oversee and support the Natural Medicine Advisory Board and the new Tribal and Indigenous Working Group.
SB23-290 gives the newly formed DNM and the Director of the Division of Occupations in DORA the authority to promulgate rules for the natural medicine regulated access program. Clear rulemaking authority is given to agency heads on key programmatic pieces.
Coupled with this change, the bill creates the Natural Medicine Facilitator Cash Fund (under DORA) and the Regulated Natural Medicine Cash Fund (under DOR).
Natural Medicine Advisory Board
The bill keeps and slightly modifies the Board contemplated by the NMHA. The Board’s duties are expanded and now include examining issues related to natural medicine and natural medicine products and making recommendations to the Director of the Division of Professions and Occupations and the Executive Director of the state licensing authority. The Board also has a clear mandate to address issues around equity, tiered facilitator training, and other key aspects of the program.
SB23-290 extends the timeline for accepting license applications for new licenses, registrations, permits, or certificates to December 31, 2024. The bill directs the DNM to prioritize application processing for applicants who have established residency in Colorado. The DNM will determine the eligibility requirements and privileges under the licenses, registrations, permits, or certificates. Proposition 122 had a limit of 5 Healing Center Licenses per person; this bill keeps that limitation but applies it to any natural medicine business license.
1,000-Foot Distance Requirements
SB23-290 prevents the State Licensing Authority from acting on an application for the issuance of a Natural Medicine Business License if the building where natural medicine services are provided is within 1,000 feet of a childcare center (including residential childcare facilities), preschool, elementary, middle, junior, or high school. Localities have the authority to vary these setback requirements.
No Professional Degree Requirement Unless Licenses are Tiered
The bill notes that the educational and experiential requirements and qualifications for an individual to become a facilitator do not include a professional license or professional degree, similar to the NMHA. The qualifications to be a facilitator do include education and training in the following:
In addition to this, SB23-290 creates new safety precautions around consenting to physical contact with any participant during natural medicine services, including obtaining signed informed consent for permissible physical contact and permitting a participant to withdraw consent for physical content in any manner and at any time.
The bill text permits consideration of conducting the preparation, administration, and integration sessions via Telehealth methods.
This bill makes the sharing of ibogaine with another person prohibited. The Board is to prioritize considering its addition to the regulated model and may recommend doing so before June 1, 2026, with the approval of the director and executive director of the state licensing authority (DOR).
Under federal law, certain expenses are disallowed under section 280E of the Internal Revenue Code (IRC). Under state law, the state income tax code permits taxpayers who are licensed under the "Colorado Marijuana Code" to subtract expenses that are disallowed by section 280E of the IRC. The bill expands this permission to taxpayers who are licensed under the "Colorado Natural Medicine Code."
The bill requires the DOR to coordinate with the Colorado Department of Public Health and Environment (CDPHE) concerning testing standards and certification requirements of regulated natural medicine and natural medicine products. It also permits the DOR to create rules around licensed laboratories testing personal use products.
No Personal Possession Limits
SB23-290 does not create any limitation on personal possession, except for a 12-foot by 12-foot cultivation limit which can be waived by local governments.
Reasonable Remuneration Under Personal Use
“Personal Use” does not mean the sale of natural medicine or natural medicine product for remuneration or sharing natural medicine as part of a business promotion or commercial activity. However, the bill establishes that it does not preclude remuneration for bona fide harm reduction services or bona fide support services used concurrently with the sharing of natural medicine or natural medicine product. There may not be any advertisements related to the sharing of natural medicine, natural medicine products, or the services provided.
Unlawful Acts
NMHA decriminalized the personal use of certain natural psychedelics if the person is twenty-one years of age or older and only within the context of counseling, spiritual guidance, beneficial community-based use and healing, supported use, or related services. SB23-290 addresses the following unlawful activity, which is all generally consistent with NMHA:
Record Sealing
Consistent with the vision of NMHA, the bill makes a person eligible to file a motion to have conviction records related to natural medicine or natural medicine product that occurred prior to the passage of the act sealed immediately after the later date of final disposition or release from supervision.
Other Important Provisions
SB23-290 also keeps, but slightly modifies, the express protections that were in NMHA around child rearing, use on probation/parole, receiving public benefits, and insurance coverage.
Stay tuned for a more detailed analysis of the Colorado Natural Medicine Health Act implementation bill, SB23-290.
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