Making Mushrooms Legal

Making Mushrooms Legal

After 50 years of prohibition, some states are starting to challenge the federal government’s policy on psychedelic drugs.


In November 2020, voters in Oregon passed a pair of historic drug policy ballot measures. The first was Measure 110, a proposal to decriminalize low-level drug possession, with 58 percent in favor; the second was Measure 109, a proposal to grant legal access to psilocybin (the psychoactive component in magic mushrooms) for mental health treatment, with 56 percent in favor. It was an unprecedented turn of events in drug policy. But as always in the United States, businessmen were waiting in the wings.

Compass Pathways, a biotech firm backed by the right-wing Silicon Valley billionaire Peter Thiel, had been preparing for a “psychedelic revolution” and the subsequent investor windfall, accumulating patents here and abroad for its synthesized formulation of psilocybin and its use in therapy. In a patent application the same year as the Oregon ballot, Compass Pathways filed claims for specific aspects of psychedelic therapy, including “the room is decorated using muted colors” and “the room comprises a bed or a couch.” The claims also included behaviors like holding hands, the therapist providing “reassuring physical contact,” and the use of breathing exercises. This attempt to commodify the basic elements of psychedelic therapy, or trip sitting, signals that psychedelics are the latest trend to catch Big Pharma’s eye.

Compass Pathways was cofounded by George Goldsmith and Ekaterina Malievskaia, a wealthy married couple. The London-based company started as a nonprofit but quietly transitioned to for-profit status in 2017, a move that was criticized by a number of experts and researchers in the psychedelic community, as Quartz reported in 2018. After building its business on top of years of expert research and Indigenous knowledge, Compass Pathways wants to dominate the market, filing broad patent claims to try to gain ownership over the nascent field.

For decades, psilocybin has been at the forefront of the movement to decriminalize psychedelic drugs. A growing body of research into the therapeutic potential of mushrooms and other psychedelics, particularly in treating depression, post-traumatic stress disorder, substance abuse, and end-of-life distress, has helped destigmatize this class of drugs and bring them further into the scientific and cultural mainstream. After more than 50 years of the War on Drugs, the politics of psychedelic reform are evolving at a remarkable speed, with many cities and states actively considering decriminalization or reform. But altered states of consciousness are no safe harbor from the pursuit of profit.

The emerging psychedelic industry is projected to grow to a $10.75 billion business by 2027, and it’s already being flooded with millions by investors, mostly from venture capital, Big Tech, and philanthropic donors. These days, psychedelic companies are listed on the Nasdaq, valued at billions of dollars, and locked in a fierce battle over intellectual property rights and research. Freedom to Operate, a nonprofit that fights overreaching patents in the psychedelic industry, has challenged Compass Pathways’ synthetic psilocybin patents, arguing that their formulation isn’t a novel invention.

“We do need to be vigilant,” Oregon Representative Earl Blumenauer, one of the biggest advocates for psychedelic policy reform in Congress, said in an interview with The Nation. “Big companies are going to try and monopolize drug therapies with psilocybin and psychedelics, just like Big Pharma has attempted to patent everything in sight, and then spend more time and money being able to manipulate the patents and extend and evergreen them.”

The pharmaceutical industry has long relied on the patent system to keep prices exorbitantly high, prevent further research, and suppress competition, all at the cost of patient safety. An analysis by the Initiative for Medicines, Access, and Knowledge found that the 10 best-selling pharmaceutical drugs in 2019 were covered by an average of nearly 70 patents, and the prices of these drugs increased by 71 percent over a span of five years. With the science around psychedelics still evolving, Blumenauer said, casting such a broad net with patents intended to forestall competition “would be a tremendous step backward.”

The rise of Compass Pathways and other for-profit psychedelic therapy start-ups has raised questions about the future of the potentially life-saving treatment—as well as about the ethics of profiting off a mind-altering substance that humans have been using for centuries. Medicalizing psychedelics has played a crucial role in the effort to decriminalize and provide legal access to these drugs, but it brings its own set of contradictions and risks. Ismail Lourido Ali, the director of policy and advocacy for the Multidisciplinary Association for Psychedelic Studies (MAPS), a nonprofit research group, believes that the commercialization of psychedelics is a growing concern, “not necessarily just because of the companies involved, but because of the way that the US health care system is structured.”

America’s crackdown on psychedelic drugs and research began under President Richard Nixon as part of a deliberate strategy to win reelection and maintain political power through the repression of the urban poor. Nixon officially launched the War on Drugs at a press conference in June 1971, in a speech that marked the rise of the US police state and the modern era of violent drug policy. To fight “America’s public enemy No. 1,” the president said, the country would have to “wage a new, all-out offensive.” So he asked Congress for an additional $155 million—about $1 billion in today’s dollars—to do just that.

The Nixon administration’s anti-drug crusade destabilized entire communities and drastically altered the public perception of psychedelics, laying the groundwork for the decades of increased criminalization that followed. It was also a war on scientific research: The Controlled Substances Act of 1970 classified LSD, magic mushrooms, and other psychedelics under Schedule I, the most restricted category, prohibiting their use for any purpose. Legal restrictions at the national and international level led to ongoing scientific suppression. Research into the therapeutic potential of psychedelics was largely stalled, and only recently has it resumed.

In 2019, Denver became the first US city to effectively decriminalize psilocybin, with voters narrowly approving a ballot initiative to declare psychedelic mushrooms the city’s “lowest law enforcement priority.” Since then, the movement has picked up steam, with cities like Seattle, Oakland, Calif., and Washington, D.C., moving either to decriminalize or to deprioritize the enforcement of laws against their use. Oregon went even further, becoming the first state to legalize psilocybin therapy in November 2020. And legislators in Pennsylvania, Oklahoma, Virginia, and New Hampshire have filed similar bills.

At the national level, New York Representative Alexandria Ocasio-Cortez has twice offered an amendment to promote research into the use of psychedelics in the treatment of diseases like PTSD, depression, and addiction. When she first introduced the measure as a freshman lawmaker in 2019, some of her colleagues laughed at the idea, and it was defeated in a 331-91 vote. Ocasio-Cortez introduced the amendment again two years later; though it didn’t pass, it gained 49 additional supporters.

Blumenauer believes that Congress has been slow to catch up with local and state movements because people have only recently begun to rediscover the history and potential of these drugs. “The federal government’s frozen in time,” he said. “It’s incoherent and creating all sorts of problems, because they have not dealt with access, with research, with taxation. I think, as a practical matter, this has not been on people’s radar screen. I’ve had an opportunity because of the ballot measure in Oregon, which set up a pilot project for assisted psilocybin therapy in a controlled setting…. It has sort of a checkered past, because it got hijacked, you know, by Timothy Leary and [Ken] Kesey’s Merry Pranksters, and it was not dealt with by most people as a serious therapy. But that’s changing.”

The push to broaden access to psychedelic therapies has even won conservative allies. Last year, Texas—a state long controlled by Republicans—enacted a law authorizing research into how psilocybin could help veterans with PTSD. Former governor Rick Perry, a Republican who, in his own words, has “historically been a very anti-drug person,” championed the bill to expedite the research, despite his broader opposition. “All of that properly done in the right type of clinical setting will save a multitude of lives,” Perry told The Texas Tribune last year. “I’m convinced of it. I have seen it enough [in] these young men.”

Even if a more humane policy wins the day, the health care industry remains a powerful force. Without efforts to prevent monopolization, MAPS’s Ali said, psychedelics will soon end up like most other mainstream medical treatments. “I have very real concerns about the influence of the profit motive,” he stressed, “and how the seeking of profit affects health care in general and then access to substances like psychedelics.”

The future of psilocybin may be visible in the status of ketamine. Best known as either a party drug or a veterinary medicine, ketamine was approved as an anesthetic by the Food and Drug Administration in 1970 and used by the US military to treat soldiers during the Vietnam War. It has exploded in popularity over the past several years as an off-label treatment for depression. Administered intravenously or through intramuscular injection by a trained professional, ketamine has rapid antidepressant effects that can last days or weeks, specifically in patients with severe depression and suicidality. In 2019, the FDA approved Johnson & Johnson’s Spravato, a nasal spray that contains esketamine (the active component of ketamine) for difficult-to-treat depression. The pharmaceutical giant set a list price of $590 to $885 per treatment session for its spray and an annual list price of $32,400. In-person ketamine clinics charge between $400 and $800 per infusion. But as many casual users can tell you, ketamine is dirt-cheap to manufacture.

Ketamine therapy and some psilocybin products are now firmly enmeshed in the creepy world of targeted ads, with sponsored messages from health care start-ups popping up on Instagram, Facebook, and YouTube. Start-ups focused on attention-deficit hyperactivity disorder have also been caught promoting medication, telemedicine, and self-diagnosis on platforms like TikTok, aiming their advertisements at young users. There’s the obvious question of safety, especially when it comes to telemedicine, as these loosely regulated services use personal data to target people who are looking for relief. These companies are incentivized to pathologize every facet of human behavior, including the complexities of our relationships and lifestyles and the unpleasant but ordinary aspects of being alive. Like Big Pharma, organized religion, and “wellness” brands like Goop, venture capital is trying to convince us that we need its products for self-growth, optimization, well-being, and spiritual rebirth.

“There is no question that one of the reasons we have so much mental health distress is because of a failure of social systems,” Ali said. “You can see that as a failure of capitalism, or as a failure of the government, the failure of some combination of both, or the legacy of colonialism and racism.”

Without a broader policy change to end the federal government’s disastrous War on Drugs, or at least the complete decriminalization of personal use and possession, there’s a good chance we’ll end up with a system in which only those who can afford to drop thousands on a psilocybin session to treat a medical condition get access to the help they need.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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