Nicole Potter

Last week, a psilocybin research bill in Indiana was sent to the desk of Gov. Eric Holcomb. The bill was recently passed in the Senate in February (Senate Bill 139), followed by the House Public Health Committee shortly afterwards.

Following the end of the 2024 legislative session on March 8, bill sponsor Sen. Ed Charbonneau published a press release about his pride in working toward passing three different bills. The first would help make child care more affordable for Indianans, and the second included an expansion to health plans to include coverage for searching biomarkers for diagnosis or condition treatment. 

However, the third bill includes a mention of SB-139. “Another bill I worked on this session was Senate Bill 139, which would have established a fund to aid Indiana research institutions in studying the potential use of psilocybin in treating mental health and other medical conditions, especially in veterans and first responders,” Charbonneau wrote. “While SB 139 did not make it through the legislative process, the language was added to House Enrolled Act 1259, which would also expand the number of people eligible to provide health care services.”

Now the bill is being sent to the desk of Gov. Holcomb for final review. If SB-139 became law, it would create a therapeutic psilocybin research fund that would be managed by the Indiana Department of Health. The fund would provide financial assistance to research institutions to study psilocybin as a method of treating mental health or other conditions. The bill currently states conditions such as post-traumatic stress disorder, anxiety, depression, bipolar disorder, chronic pain, migraines, alcohol use disorder, and tobacco use disorder.

Additionally, it works to compare “the efficacy of psilocybin as a treatment for mental health and other medical conditions…with the efficacy of other current treatment options for mental health and other medical conditions.”

One requirement of institutions that apply to research psilocybin would include the use of veterans or first responders in their study as they “Evaluate and determine whether psilocybin is an effective treatment for mental health and other medical conditions.” After the study is concluded, the researchers would then submit a report of their findings to the Interim Study Committee on Public Health, the Indiana Behavioral Health Commission, and Human Services, as well as “state department and division of mental health and addiction.”

If passed, these processes to organize applications would begin starting on July 1, 2024.

Last year in November, the Interim Study Committee on Public Health, Behavioral Health and Human Services held its last meeting and issued a report recommending that legislators consider developing a psilocybin pilot program in 2024 “that strikes a balance between access, research, and prudence.”

At the meeting, Charbonneau explained that he’s already spoken with educational institutions that are interested in studying psilocybin. “I have had discussions with both [Indiana University] Health and with Purdue University,” said Charbonneau. “I spoke to 150 pharmacy students at Purdue, and afterward had a chance to speak with the dean of the pharmacy program…and he texted Dr. Jerome Adams, who’s now at Purdue University.” Adams previously served as U.S. surgeon general under former President Donald Trump.

The report made a distinction between medical cannabis and psilocybin, and described psilocybin-assisted therapy as more beneficial. “Many people conflate increased access to psilocybin assisted therapy with the issue of increased access to medical and recreational cannabis,” the report said. “However, the committee hearing made it clear that the evidence for psilocybin assisted therapy is promising and significantly more robust and the two issues are unrelated.”

Indiana’s neighboring states of Illinois, Michigan, and Ohio all have some form of cannabis legalization now. The only remaining state is Kentucky to the south, which currently has legalized medical cannabis but won’t officially launch until 2025.

However, Sen. J.D. Ford told WFYI Indianapolis in January that the lack of progress is due to legislators refusing to discuss legalization. “You’ve got the elected officials who are unwilling to have the conversation and you’ve got some of these other powerful lobbying groups that are continuing to block conversation, block bills from getting a committee hearing,” Ford said.

In a press event in January, Senate Pro Tempore Rodric Bray shut down inquiries from reporters regarding cannabis decriminalization or legalization. “Are we going to legalize cannabis this session? That’s not going to be the case,” Bray said. 

Previously in 2019, Indiana Gov. Eric Holcomb has previously stated that he will not take action on any cannabis legalization bills until it has been legalized on the federal level. “If the law changed, we would look at all the positive or adverse impacts it would have,” Holcomb said. “I’m not convinced other states have made a wise decision.”

In 2023, he did admit that decriminalizing cannabis in small amounts makes sense. “I do not believe that simple possession at certain limits should derail someone’s life,” Holcomb said.

Arizona Attorney General Kris Mayes recently issued a formal legal opinion on March 11, which addressed a question sent by Sen. Steve Montenegro and Sen. T.J. Shope, which inquired if selling delta-8 THC products (which also covers delta-10 products and any other “hemp-synthesized intoxicants”) at smoke shops or convenience stores violates state law.

Mayes’ summary answer immediately responds to the presented question. “No, Arizona law does not permit the sale of delta-8 and other hemp-synthesized intoxicants by entities that have not been licensed by Health Services,” Mayes wrote. “Irrespective of delta-8’s arguable federal legality under the 2018 Agriculture Improvement Act (“Farm Bill”), Arizona continues to define and regulate “industrial hemp” in a manner that precludes the sale of hemp-synthesized intoxicants in convenience stores, smoke shops, and other unlicensed locales.”

The opinion sets up an analysis supported with background history of cannabis in Arizona, starting with medical cannabis legalization in 2010, the effects of the 2018 Farm Bill, the state’s legalization of industrial hemp for some purposes (also in 2018), and the following surge in delta-8 THC products.

Mayes also utilizes Food and Drug Administration (FDA) concerns about unregulated delta-8 THC. The FDA previously said that “[s]ome manufacturers may use potentially unsafe household chemicals to make delta-8 THC through this chemical synthesis process,” and “[t]he final delta-8 THC product may have potentially harmful by-products (contaminants) due to the chemicals used in the process.” Further accounts claim unsanitary settings where products are processed, calling it a “’quite a soup’ of by-products and other unwanted compounds.” Also, Mayes includes that the FDA has received 104 reports regarding adverse effects of delta-8 THC product consumption between December 2020-February 2022, as well as 2,362 “exposure cases” involving delta-8.

Following this, Mayes begins the analysis portion of the legal opinion. “You have asked this Office to examine whether entities that do not possess a license to sell cannabis products by Health Services can lawfully sell products containing delta-8 THC or similar hemp-synthesized intoxicants,” Mayes wrote. “The answer to that question depends on whether products containing hemp-synthesized intoxicants constitute ‘controlled substances’ and/or ‘industrial hemp’ under Arizona law. As explained below, we conclude that state law prevents entities not appropriately licensed by Health Services from selling products containing hemp-synthesized intoxicants like delta-8 THC.”

Mayes cites that delta-8 THC products are listed as a controlled substance in Arizona, and that the state’s industrial hemp program “does not exempt hemp-synthesized intoxicants from Health Services’ regulation.”

State law defines cannabis as “all parts of any plant of the genus cannabis whether growing or not, and the seeds of such plant.” Mayes included a 2019 court case, State v. Jones, in which the Supreme Court ruled on whether the state definition of cannabis also applies to hashish or cannabis extracts, to determine if medical cannabis patients are protected if they use extracts instead of dried cannabis flower. “‘All parts’ refers to all constituent elements of the marijuana plant, and the fact the resin must first be extracted from the plant reflects that it is part of the plant,” the ruling stated.

However, Mayes explained that this case does not apply to delta-8. “Jones’ plain import is that because [Arizona Medical Marijuana Act] legalized marijuana—an intoxicating substance—for certain purposes, it must be understood to have legalized a materially similar intoxicating extract of marijuana. Nothing in the case’s holding or reasoning supports its extension to the synthesis of an intoxicating product from a non-intoxicating product.”

Finally, the opinion ends with a final point that although the industrial hemp law was incorporated into federal law, it does not legalize delta-8 THC products.

Mayes concludes her opinion and reiterates that delta-8 THC products, as well as other hemp-synthesized intoxicants, can’t legally be sold by unlicensed sellers. “Arizona’s 2018 industrial hemp law did not create an exception to these laws,” she wrote. “Rather, in contrast to the federal Farm Bill, the industrial hemp law omitted hemp ‘extracts’ and ‘derivatives’ from the definition of industrial hemp and expressly provided that the State wished to ‘maintain strict control of marijuana.’ Delta-8’s sale by unlicensed entities like convenience stores and smoke shops is therefore unlawful.”

The Arizona Mirror spoke with Jonathan Udell, Arizona NORML communications director, about Mayes’ legal opinion, stating that she is giving the state’s cannabis industry a monopoly. “This is Attorney General Mayes giving the marijuana industry something that the legislature would not,” Udell said. “It’s a disappointing outcome.”

Udell provided an example, explaining that the Arizona Dispensaries Association (ADA) has introduced legislation in the past to regulate hemp-derived THC products by banning sales of such products or making it legal to sell them only at licensed dispensaries. According to a campaign finance report obtained by the Arizona Mirror, the ADA provided $40,000 to a political committee that spent approximately $367,000 in order to assist Mayes in getting elected to her position.

ADA executive director, Ann Torez, sent a statement to the news outlet, approving of Mayes’ opinion. “We believe it reflects the intent of Arizona’s voters and most importantly is in the best interest of public health and safety,” Torez said.

Additionally, the Arizona Mirror spoke with Phoenix-based attorney Tom Dean, who claims that Mayes’ legal opinion is very similar to a rebuttal of a legal analysis that he provided last year. “It’s just yet another example of what I think is a wrongheaded approach to marijuana policy in general,” Dean said. He added that Mayes’ opinion isn’t legally binding, and a lawsuit would be necessary in order to pursue a legal conclusion to the argument.