Oregon's Measure 109 opt-outs: 5 Questions for drug policy reform advocate Sam Chapman

Sam Chapman is a sort of front man for drug policy reform in Oregon. Recently, he’s been spending a lot of hours in Zoom meetings talking with local officials, hoping they don’t opt out of Oregon’s Measure 109, which established legal psilocybin services in the state. When we spoke with Chapman in early August, a majority of Oregon’s 36 counties were considering adding ballot initiatives to the November election for voters to ban psilocybin services. As of today, 26 counties and 57 cities will vote on the issue in a few months. 

Voters passed Measure 109 in November 2020 and Chapman was the measure’s campaign manager, although his involvement in efforts to reform the way Americans view and regulate drugs stretches much farther back. As a college student, he started working with the Students for Sensible Drug Policy, and in 2013, he co-authored House Bill 3460, which established Oregon’s medical cannabis dispensaries.

Chapman is now the executive director of Healing Advocacy Fund, a nonprofit dedicated to supporting the implementation of Measure 109. The Microdose spoke with him about what spurred these opt-out initiatives and what questions he’s getting from local officials about Measure 109.

Measure 109 includes a clause explaining how cities and counties can opt out of the program if they choose to. How does that work, and why did advocates write that in? 

There are two steps to opting out: the first is that either county or city commissioners or the council needs to vote to send that opt out language to the next general election, which will be this November. Then, the people will decide. 

Including the opt-out option was a political calculation we made. We were thinking: what type of opposition might show up during the campaign if we don’t do this? And we have seen plenty of different non-psychedelic related campaigns that assert authority over entities like local governments — people will fight tooth and nail to defeat those campaigns. We knew that if we wanted to pass a law that’s never been passed anywhere before, where we may not have, say, more than 70% of the vote, we couldn’t force localities whose residents didn’t support it to have to have psilocybin services. 

Measure 109 was passed in November 2020. It’s now August 2022, which means it’s been 21 months. The deadline for counties to file an opt-out ballot initiative with their county clerk is August 19, and we’ve seen an explosion of local municipalities considering such initiatives. What is happening?

The League of Cities is an organization that represents the interest of all cities, specifically the right to local control. They published a white paper on how to opt out of the program, which included a draft template of an opt-out ordinance for cities, which can easily be applied to counties too.

But the white paper fell short of providing any other options besides opting out. We actually met with the League of Cities and said, What the hell? There are cities who want to be part of this program. For instance, the city of Portland is not going to opt out of this program; what are you doing for them, and what are you doing to represent the will of all of the cities, many of which were heavily in favor of this measure? The League of Cities didn't really have an answer. They are committed to working with us to help answer questions, and they were able to give us a good sense of what some of their members’ concerns are — which weren’t anything we haven't already heard. We thought, if your members are concerned, can we work together to educate them? But it may be too little too late for that now. 

An opt-out is just the easy thing for cities or counties to do. Maybe they haven't done their homework on Measure 109, and it's coming fast; they feel like it’s crunch time. 

You’ve met with local officials about Measure 109, and have spoken at public hearings where county commissioners are soliciting feedback about opting out. What concerns are you hearing from these local leaders?

Between COVID and wildfires and the lack of general health care, localities are dealing with all kinds of things, so a lot of people are not familiar with the intricacies of the measure. It’s 71 pages, and I don't expect everyone to read it. They're not familiar with how systems work as it relates to city and county authority. A lot of what we’re doing is just basic education; we're repeating many of the same points we did during the campaign. 

I like to remind local governments that it is not true to say that there are no rules that are final; there’s an entire set of rules that are finalized.  They're right to say that the remaining rules have not been finalized, but there are recommendations that are out, 90% of which will be turned into rules, just like we saw in that first set of rules that came out on training, products and testing. [Editor’s note: For context, the League of Cities’ draft ban asserts that the Oregon Health Authority “has not completed the rulemaking process for implementing the state’s psilocybin regulatory program,” language that many municipalities have adopted in their opt-out ballot measures.]

The other thing that's important to know is that while the rulemaking process will be wrapping up over the next couple of months, very few of those rules will have an impact on the decisions that local governments need to make, which all have to do with time, place, and manner restrictions. You are not going to see an Oregon Health Authority rule on additional zoning or setback requirements; that's not for the OHA to decide. The only aspects requiring local government considerations already exist in the measure: psilocybin production facilities cannot be located within a residential home, all service centers have to be more than 1000 feet from schools. 

You also worked on Oregon’s medicinal marijuana movement. Has the state’s experience with cannabis influenced its reception of psilocybin and Measure 109?

I would say at least half of all the concerns about Measure 109 are coming from knee jerk reactions around cannabis. There was an ability for local governments to opt out when cannabis was introduced, but it was structured differently: they could only do it if they met a threshold of “no” votes in their locality. That was also the very first time localities had to come up with potential reasonable time, place and manner regulations. There wasn’t a statutory definition of “reasonable,” so they had to make their own interpretations. For instance, in the case of Deschutes County, they made unreasonable regulations on cannabis and got sued, so they understandably have some PTSD around that issue. [Editor’s note: In our July 15 issue, The Microdose reported on a recent public hearing held by Deschutes County commissioners, in which one commissioner asked whether introducing time, place, and manner restrictions could result in challenges or “legal drama.”]

There is, understandably, confusion from local governments. They’re like, “Okay, we remember the psilocybin thing passed, but what is it again? Are there going to be psilocybin retail stores all over the place?” So sometimes we start with what the measure is not: there are no retail sales; psilocybin is not going to be leaving the premises; all administration sessions have to happen at a licensed service center under the constant supervision of a trained and licensed facilitator. 

We also point out that production of psilocybin is not anywhere near comparable to production of cannabis, especially when it comes to the potential nuisances of the smell and the light, how much square footage it takes up, and how much electricity it uses. 

We’ll have to wait until November to see results from municipalities’ opt-out ballot measures. What other work is the Healing Advocacy Fund planning in the meantime?

We’ve still got our eyes on that other big ball in our court right now: the final rules. We'll be involved in that rulemaking process with all the stakeholders over the next couple of months and ensuring that we have developed solutions for safety. There are plenty of folks who are tired of hearing us beat that drum, but this program has not launched yet; we have not seen how it works or does not work, and therefore, we need to be cautious. If we screw things up here in Oregon, that has ripple effects across the country. We get one shot at laying a solid foundation that is workable, that can be expanded upon.

This interview has been edited and condensed for clarity and length.