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Will Mushrooms become Legal in Colorado? - Part II

In my last post, I outlined the essential pieces to the initiative to legalize possession and use of psilocybin, or “mushrooms,” in Denver, Colorado. If you missed it, read HERE.

There are many similarities to this push for legalization as there were in 2012, when the state legalized the recreational use of cannabis. Let’s take a look at how this initiative is similar, how it’s different, and how this will directly and indirectly affect citizens of Boulder and the country at large. 

This Initiative is Specific to Denver—for Now

At this point, this initiative is specific to the city of Denver, and even if it passes in May 2019 (when the initiative is expected to be on the municipal ballot), it will not affect citizens of Boulder, where I primarily practice law. However, this is still a noteworthy situation because at this point it appears to be following the same path to legalization that marijuana took. 

In 2015, Boulder passed a law that possession of less than 1 ounce of marijuana was not illegal, bucking the standard for the rest of the state until eventually, the State of Colorado matched Boulder’s standard. It’s not uncommon for a city to pass a law first, then the state legislature to take it under consideration and eventually agree and go along with the city’s initiative. 

So, it’s likely that, if and when psilocybin becomes legal in Denver, other cities in Colorado will follow suit, and the state will create similar laws. Since Oregon, Washington and Colorado have similar populations (demographically and ideologically speaking), it is very likely that, if Colorado were to decriminalize possession and use of psilocybin, those two states would follow the trend and legalize it, as well. 

Psilocybin and Federal Law 

Now, sometimes you get into issues of primary jurisdiction. In fact, this is happening right now with fracking: municipalities are passing laws that outlaw fracking, but oil and gas companies are coming in and saying, “State law allows us to frack on this land, and municipalities cannot pass laws that are in conflict with state law.”

This is where it can get complicated for mushrooms, and marijuana: the possession, manufacture and use of cannabis is still illegal on the federal level. So, the question becomes, can Colorado pass a law that contradicts federal law? It will come down to where the government chooses to put its focus.

When Jeff Sessions was the attorney general, his stated intention was to pursue marijuana as being illegal in states that passed laws to legalize it. At the time, various Colorado representatives (primarily Cory Gardner and Michael Bennett) approached President Trump directly to request that he leave the Colorado marijuana laws alone. Presumably this was because, since legalization, cannabis has become a billion-dollar business and generated huge tax revenue for the state. As of this time, the Federal government has not taken any action inconsistent with the State’s decriminalization of marijuana.

While no one can tell for certain what will happen when it comes to the legalization of possession and use of mushrooms, at the moment the outlook is good. And if the drug is legalized in Denver, there’s a good chance that it may affect laws for the states and possibly, eventually the country. 

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