The laws governing psychedelics can be confusing, with legal “grey areas” arising due to ambiguous or conflicting laws. Confusion about what’s legal, and what’s not, can increase the risk of legal consequences for operators and consumers alike.
The legality of psilocybin and psilocybin spores has long been debated and misunderstood. As laid out below, a U.S. Drug Enforcement Administration (“DEA”) official recently confirmed that psilocybin spores are in fact federally legal. Although, this news does not mean that the sale or possession of psilocybin spores are completely protected under the law. Read on to learn about the key legal issues surrounding psilocybin spores.
The Legal Status of Psilocybin vs. Psilocybin Spores
Psilocybin, the chemical found in psilocybin mushrooms, is classified as a Schedule I substance under the federal Controlled Substances Act (“CSA”), which means that the cultivation, possession, or sale of psilocybin is illegal in all contexts under federal law.
Notwithstanding federal law, various cities have decriminalized the possession and consumption of psilocybin over the last several years. States, such as Oregon and Colorado, have legalized the use of psilocybin, and several other states are leading efforts to do the same. In these decriminalized or legalized contexts, psilocybin remains illegal under federal law.
Despite federal prohibition, the ongoing revival of psychedelic discourse in the U.S. has piqued interest in psilocybin spores, which are used to cultivate psilocybin mushrooms. Spores are the reproductive engine of mushrooms, and can be analogized with seeds. Up until recently, the federal legal status of psilocybin spores was often debated, and misinformation on the topic was widespread across the internet.
Recently, Terrence Boos, Drug & Chemical Evaluation Section Chief at the DEA, clarified the DEA’s position on the federal status of psilocybin spores in response to a clarification request from New York attorney Michael McGuire. The letter confirmed that it is the DEA’s position that psilocybin spores are in fact not prohibited under federal law.
This news provides useful clarification to operators and consumers interested in psilocybin spores, but also introduces the potential for additional confusion and subsequent legal risk. Here, we break down the key issues that interested parties should be aware of.
Psilocybin Spores (That Do Not Contain Psilocybin) Are Not a Federally Controlled Substance under the CSA
The DEA’s letter states that, “[i]f the mushroom spores (or any other material) do not contain psilocybin or psilocin (or any other controlled substance or listed chemical), the material is considered not controlled under the CSA.”
The letter continues to state that, “if at any time the material contains a controlled substance such as psilocybin or psilocin (for example, upon germination), the material would be considered a controlled substance under the CSA.”
This distinction exists because psilocybin mushrooms as a whole are not classified as a federally illegal controlled substance. Rather, psilocybin or psilocin are the substances named as controlled substances under Schedule I of the CSA. Thus, the scope of federal legality extends exclusively to spores which may be capable of producing psilocybin mushrooms, but do not actually contain psilocybin or psilocin.
Use of Psilocybin Spores May Nonetheless be Illegal in Certain Contexts
While psilocybin spores are not a federally controlled substance, there are still several sources of legal risk for engaging with psilocybin spores.
- Possession With Intent to Cultivate Psilocybin Is Illegal.
Under the CSA, it is federally illegal to manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. Thus, while possession of psilocybin spores is federally legal, possession of such spores––with the intent to use those spores to cultivate psilocybin mushrooms––is federally illegal.
- Psilocybin Spores May Be Considered Illegal Drug Paraphernalia.
A person may also be charged with manufacturing or selling psilocybin spores under the provisions of the CSA that criminalize the possession and sale of drug paraphernalia.
The CSA defines drug paraphernalia as any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
- Sellers Should Understand the Risk of Conspiracy or Attempt Charges.
A person may also be federally charged for attempt or conspiracy to violate the CSA if there is any evidence that the operator had reason to know the psilocybin spores would be used to cultivate psilocybin mushrooms.
For example, the courts have gone so far as to find that materials used to grow psilocybin spores (i.e., grow kits), in addition to psilocybin spores, may violate the CSA. Specifically, the Wisconsin Court of Appeals found in 2007, that a manufacturer of “growth kits” knew the consumers intended to use the spores to illegally manufacture psilocybin, and that the manufacturer intended to further, promote, and cooperate in the consumer’s illegal cultivation of the mushrooms (State v. Routon, 2007 WI App 178, 2007 WL 1774943 (Wis. Ct. App. 2007).
- Psilocybin Spores are Illegal Substances in Some States.
Importantly, while psilocybin spores are not a controlled substance under federal law, psilocybin spores are illegal in a handful of states, including California. It is important that sellers are aware of these state-level distinctions, and do not engage in activities that may violate state law.
In California specifically, it is illegal to cultivate, transport, sell, furnish or give away spores capable of producing mushrooms which contain a controlled substance. Although, psilocybin spores are legal in California when “lawfully obtained and used for bona fide research, instruction or analysis” that is approved by the Research Advisory Panel.
In short, manufacturing and selling psilocybin sales for research purposes is a great opportunity for operators looking to enter the legal psychedelic market. Although, the risk is not non-existent. To protect their business and interests, psilocybin spore manufacturers and sellers should meet with an attorney to conduct a state by state regulatory assessment, draft risk-mitigating contracts and disclaimers, and establish a comprehensive compliance protocol to ensure that their operations do not contribute to activity that may be considered a violation of the CSA or applicable state law.
Manzuri Law Psychedelic Attorneys
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