WRITTEN TESTIMONY OF THE DEPARTMENT OF THE ATTORNEY GENERAL THIRTY-FIRST LEGISLATURE, 2021 ON THE FOLLOWING MEASURE: S.B. NO. 738, RELATING TO SCHEDULE I SUBSTANCES. BEFORE THE: SENATE COMMITTEE ON JUDICIARY DATE: Friday, February 19, 2021 TIME: 9:30 a.m. LOCATION: State Capitol, Via Videoconference TESTIFIER WRITTEN TESTIMONY ONLY (For more information, contact Laura Maeshiro, Deputy Attorney General, at 587-2978) Chair Rhoads and Members of the Committee: The Department of the Attorney General provides the following comments. The purposes of this bill are to remove psilocybin and psilocyn from Schedule I of chapter 329, Hawaii Revised Statutes (HRS), and require the Department of Health to establish designated treatment centers for therapeutic administration of these substances. The bill also establishes a review panel to review and assess the effects of this bill. Under both Hawaiʻi and federal law, psilocybin and psilocyn are Schedule I controlled substances. See HRS § 329-14(d)(26), (27); 21 U.S.C. § 812(c)(15), (16). Possessing either of these substances, in any amount, is currently illegal under both state and federal law. See HRS §§ 712-1240, 712-1243 (possession is a Class C felony); 21 U.S.C. § 844(a) (imprisonment up to one year, and/or $1000 minimum fine for the first offense). Section 2 of the bill proposes to remove psilocybin and psilocyn as state controlled substances, which would eliminate state criminal penalties and enforcement for their manufacture, distribution, or possession. The manufacture, distribution, or possession of psilocybin and psilocin would still be illegal under federal law and subject to federal enforcement. Thank you for the opportunity to provide comments on this bill. 821030_3 DAVID Y. IGE ELIZABETH A. CHAR, M.D. GOVERNOR OF HAWAII DIRECTOR OF HEALTH STATE OF HAWAII DEPARTMENT OF HEALTH P. O. Box 3378 Honolulu, HI 96801-3378 [email protected] Testimony in OPPOSITION to SB738 RELATING TO SCHEDULE I SUBSTANCES. SENATOR KARL RHOADS, CHAIR SENATE COMMITTEE ON JUDICIARY Hearing Date: February 19, 2021 Room Number: N/A 1 Department Testimony: The Department of Health (DOH) respectfully opposes this measure 2 based on its prohibitive risk and cost, as well as inappropriate placement of a clinical research 3 program with a public health agency. 4 Although psilocybin may have benefits for persons with certain mental health disorders based on 5 several small studies, the circumstances for safe and effective administration are far from proven 6 and routine therapeutic administration by DOH creates unnecessary hazards with unknown 7 public health value. 8 DOH is a health care provider of last resort that administers eligibility-based health care 9 programs for some of Hawaii’s most vulnerable residents. Designated treatment centers for 10 specialized therapies for which the only criteria appear to be medical necessity is best left to the 11 private sector which may better balance risk, economic sustainability, security, research benefit, 12 and therapeutic value. 13 The evaluation of psilocybin treatment centers required by this measure should be considered 14 human subject research for which DOH is ill-equipped, and which is the domain of academic 15 medicine or university-level clinical trials and research. The lack of published clinical practice 16 guidelines and best practices also places this squarely in the realm of medical research. 17 Furthermore, the qualifications of the review panel proposed by this measure do not include 18 experience or credentials to rigorously evaluate study design, evidence levels, medical ethics, 19 clinical risk, and other common dimensions of a health care intervention for which randomized 20 double-blind clinical trials have not been performed. SB738 Page 2 of 2 1 Lastly, physical security is a significant and costly concern. Experience with Hawaii’s medical 2 cannabis program demonstrated that millions of dollars in startup costs were required to comply 3 with physical and financial security and human health safety concerns. This measure contains no 4 appropriation, nor identifies supply chain and logistics management issues. 5 It is worth repeating that the Department of Health does not conduct human health research and 6 clinical trials, nor is a provider of direct clinical care to the general public. The human health, 7 financial, and ethical risks to the Department of Health and State of Hawaii are significant and 8 divert resources away from traditional public health program beneficiaries. 9 Thank you for the opportunity to testify. 10 Offered Amendments: N/A. 11 DAVID Y. IGE MAX N. OTANI GOVERNOR DIRECTOR Maria C. Cook Deputy Director Administration Tommy Johnson STATE OF HAWAII Deputy Director DEPARTMENT OF PUBLIC SAFETY Corrections 919 Ala Moana Boulevard, 4th Floor Jordan Lowe Honolulu, Hawaii 96814 Deputy Director Law Enforcement No. TESTIMONY ON SENATE BILL 738 RELATING TO SCHEDULE I CONTROLLED SUBSTANCES. By Max N. Otani, Director Senate Committee on Judiciary Senator Karl Rhoads, Chair Senator Jarrett Keohokalole, Vice Chair Friday, February 19, 2021; 9:30 a.m. Via Videoconference Chair Rhoads, Vice Chair Keohokalole, and Members of the Committee: The Department of Public Safety (PSD) respectfully opposes Senate Bill (SB) 738, which would: 1) remove psilocybin and psilocyn from the list of Schedule I substances; 2) require the Department of Health (DOH) to establish designated treatment centers for the therapeutic administration of psilocybin and psilocyn; and 3) establish a review panel to review and assess the effects of SB 738. The Department has two important concerns in opposition. First, PSD opposes SB 738 because it would create a conflict between Hawaii law and federal law, which would cause confusion in the State of Hawaii over the legality of psilocybin and psilocyn. SB 738 proposes to remove psilocybin and psilocyn from the State’s list of Schedule I controlled substances, thereby removing state controlled substances regulation over both psilocybin and psilocyn. However, under current federal law in 21 USC 812, both psilocybin and psilocyn are still listed as federal Schedule I controlled substances. Although Section 329-11, Hawaii Revised Statutes (HRS), authorizes the Legislature to reschedule controlled substances, the Supremacy Clause of the U.S. Constitution would take precedence over State law. "An Equal Opportunity Employer/Agency" Testimony on SB 738 Senate Committee on Judiciary February 19, 2021 Page 2 The Supremacy Clause of the United States Constitution states: “This Constitution and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United states, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding.” PSD notes that for SB 738 to be viable, the federal Controlled Substances statutes must first be changed. If SB 738 was to be enacted now, psilocybin and psilocyn would not be controlled in Hawaii, but would still be illegal and controlled under federal law. This would cause great confusion and disharmony between state and federal law. It could produce a scenario in which members of the community who may think that psilocybin and psilocyn are legal may be arrested and prosecuted by federal law enforcement authorities. Second, PSD opposes HB 738 because in its current construction, HB 738 reads as though the intent of the Legislature is to legalize psilocybin and psilocyn by removing it from Schedule I, while simultaneously directing the development of treatment centers and a review panel. PSD does not support the descheduling of psilocybin and psilocyn, because of the resulting inconsistency with federal law. If the intent of the Legislature is to establish psilocybin and psilocyn treatment centers, it would be preferable to follow the model of the Medical Marijuana program, which created a State of Hawaii exception from the substance’s Schedule I designation in order to allow its use for medical purposes, rather than descheduling these substances and creating conflict with federal law and causing questions and confusion concerning their legality. Thank you for the opportunity to testify on this measure. DAVID Y. IGE TESTIMONY BY: GOVERNOR JADE T. BUTAY DIRECTOR Deputy Directors LYNN A.S. ARAKI-REGAN DEREK J. CHOW ROSS M. HIGASHI EDWIN H. SNIFFEN STATE OF HAWAII DEPARTMENT OF TRANSPORTATION 869 PUNCHBOWL STREET HONOLULU, HAWAII 96813-5097 February 19, 2021 9:30 A.M. State Capitol, Videoconference S.B. 738 RELATING TO SCHEDULE I SUBSTANCES Senate Committee on Judiciary The Department of Transportation (DOT) offers comments for S.B. 738, which removes psilocybin and psilocyn from the list of Schedule I substances. DOT’s top priority is keeping Hawaii’s roadway users safe and reducing the number of serious injuries and fatalities on our roads. We have concerns regarding this bill, which appears to remove psilocybin and psilocyn entirely from the Schedule of Controlled Substances. Doing so would be problematic for impaired driving adjudication because of Hawaii’s current definition of “drug” in our Operating a Vehicle Under the Influence of an Intoxicant statute. Psilocybin and psilocyn have hallucinogenic properties that may impact driving abilities due to its effects (dizziness, blurry vision, impaired distance perception, objects appear to develop waves and wave-like patterns, etc.). DOT is primarily concerned about improving highway safety and protecting the lives of our community members and visitors. DOT coordinates specialized training and certifies law enforcement officers to recognize impairment in drivers under the influence of drugs through its Drug Recognition Expert program to combat this issue. Thank you for the opportunity to provide testimony. POLICE DEPARTMENT CITY AND COUNTY OF HONOLULU 801 SOUTH BERETANIA STREET - HONOLULU. HAWAII 96813 TELEPHONE (808) 529-3111 - INTERNET wvvw honolulupd org »' -1- ‘H :_-fl‘, ,__, "-._‘|| SUSAN BALLARD RICK BLAIIGIARDI Z; _—__' "-.'- CHIEF MAYOR J! "iv ’-'~.! TF7? JOHN D Mt:C/IRTHV -.I’ -xx.