Maybe Magic Mushrooms Are Not Federally Controlled Substances
A novel legal theory of "plant medicine"
No doubt, psilocybin and psilocin are federally controlled substances. But what about natural mushrooms containing psilocybin and psilocin?
Believe it or not, you can argue both sides of this one, illustrated by the case United States v. Caseer, 399 F.3d 828, 830 (6th Cir. 2005). In Caseer, the defendant was convicted of offenses relating to the importation of cathinone. But in fact, Caseer had not aided the importation of cathinone; he had aided the importation of khat, a plant containing cathinone. The issue was whether Caseer had been fairly warned that importing the khat plant into the US was illegal because unlike cathinone, the khat plant was not listed on the Controlled Substances Act (CSA) schedules.
The court majority held that despite the ambiguity in the schedules, Caseer’s due process rights were not violated. It began with a pattern in the CSA: several other chemicals classified as controlled substances are listed in the schedules along with their botanical sources, such as peyote (mescaline) and coca leaves (cocaine). And it noted that the term “cathinone” was sufficiently obscure that persons of ordinary intelligence reading the CSA schedules probably would not discern that possession of khat containing cathinone constituted possession of a controlled substance. Nonetheless, the court refused to conclude that the law could not be enforced on grounds of vagueness, because conviction required a showing of actual knowledge that khat contained cathinone.
This decision was not unanimous, however, and Judge Holschuh’s opinion in dissent is interesting and persuasive:
I don’t believe that there is anything vague, patent or latent, regarding the listing of cathinone as a controlled substance. In my view, however, when consideration is given to the subject of the regulation, cathinone, in the context of the regulations in which it is found, and the persons subjected to the regulation, a person of ordinary intelligence would conclude that possession of the khat plant is clearly not a violation of any law.
That dissent starts with the pattern the majority opinion observed: when the CSA schedules control plants containing controlled substances, they do so expressly, separate from controlled substances contained within. Thus, the schedules (21 U.S.C § 812) separately list marijuana/THC, peyote/mescaline, opium/opium derivatives, and coca leaves/cocaine:
For these plants, the schedules clearly communicate that possession of the plants is illegal, “regardless of whether the person is aware that the plant contains a particular chemical substance that has a psychoactive effect.” And by the same token they do not clearly communicate that other plants, like khat, are illegal to possess.
The Caseer dissent then addresses the First Circuit decision in United States v. Hussein, 351 F.3d 9 (1st Cir. 2003), where the court relied on the prefatory language in 21 C.F.R. § 1308.11(f)—“any material, compound, mixture, or preparation which contains any quantity of the following substances”—to conclude that possession of a “material” containing cathinone (like khat) is forbidden. The Caseer dissent persuasively disagrees, arguing that “material,” it is not clear whether the word “material” includes plant life when read in context with its adjacent words “compound, mixture, or preparation” within the framework of the regulations. After all, if “material” is read to include all plant life, the listing of marihuana and peyote and the use of “compound,” “mixture,” or “preparation” would be superfluous. Put another way, why list peyote at all if mescaline is also controlled and peyote is “material” that contains mescaline?
The Caseer dissent also distinguishes the hypothetical non-natural LSD sugar cube presented in Hussein, noting that it does not follow that any plant naturally containing a listed controlled substance is a “material” within the scope of the regulations:
While various kinds of controlled substances, such as LSD, may be concealed in different types of materials or may be mixed with other substances for consumption purposes or to avoid detection by law enforcement agencies, cathinone and cathine are natural ingredients of the khat plant in the same manner, for example, that THC is a natural ingredient of the marihuana plant. Plants are listed separately in the regulations as controlled substances and, for that reason, the hypothetical sugar cube containing LSD, in my opinion, has little, if any, relevance to the plant life involved in this case.
The dissent then addresses Hussein’s description of the plant/chemical “pattern” as “at best, irregular.” Hussein described the pattern as irregular because Schedule I prohibits possession of psilocybin and psilocyn “but not their plant hosts.” Hussein, 351 F.3d at 16. But this failure to include the mushroom that contains psilocybin or psilocyn as controlled substances could be explained another way: it might conform to the pattern. That is, those fungal hosts aren’t controlled either.
From this discussion, it follows that, as a matter of statutory construction, whether the fungal hosts of psilocybin and psilocin are in fact controlled is at least arguable. And in my opinion, the Caseer dissent offers a better reading of the statute. Four other points support my opinion.
First, the notion that “material” in the prefatory language sweeps in any container, including plant life, proves too much. Although an extreme example, consider DMT. Research has shown trace amounts of DMT to naturally exist in humans. That cannot possibly mean that the humans are walking schedule I “materials,” however. “Material” ought to exclude naturally occurring materials such as plants and living organisms as they exist in nature. That would be consistent with reading “material” in context with the surrounding words “compound,” “mixture,” or “preparation” in the statute and regulations. And it would be consistent with the fact that elsewhere in Schedule II, (a), Congress described knew how to describe plant containers, i.e., “of vegetable origin,” where coca leaves and cocaine are listed separately.
Second, non-peyote cacti like San Pedro are commonly sold in stores, including Home Depot, and those cacti contain appreciable amounts of mescaline. The government’s current position appears to be that selling and possessing these cacti is fine for ornamental use only. This is sensible policy, but has little statutory basis. Nothing in the CSA allows the possession, manufacture, and distribution of controlled substances just for ornamental use. A better explanation is that unlisted plants aren’t controlled. So while it is fine to own a San Pedro cactus (not controlled), extracting mescaline (controlled) or a mescaline solution (controlled mixture or preparation) from them is forbidden.
Third, and importantly, there is an obscure 1977 memo entitled “Control of Papaver bracteatum—Drug Enforcement Administration” written by the Office of Legal Counsel (OLC) in response to DEA’s request for an opinion on whether DEA had the authority to control the production of the plant Papaver bracteatum, and, if so, whether its production may be prohibited.
Bracteatum contains and produces thebaine that is chemically identical to the thebaine produced by the opium poppy, Papaver somniferum. As the memo explains, “Bracteatum, itself, however, is not presently a controlled substance because it is not listed in any of the schedules of 21 U.S.C. § 812, or 21 CFR § 1308.” This 1977 statement is noteworthy: it assumes a plant containing a controlled substance but not listed on the schedules is “not a controlled substance.”
Nonetheless, the memo concludes that DEA could control the production of bracteatum, under its authority to regulate the manufacture of thebaine. According to OLC, because “manufacture” is defined expansively in 21 U.S.C. § 802(14) to mean the production, preparation, propagation, compounding or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin. But read on:
In our opinion, the growth of bracteatum—which contains and produces thebaine—for the purpose of extracting thebaine it produces, constitutes the “manufacture” of thebaine within the meaning of § 802(14).
This statement does not say that DEA can regulate growing bracteatum in all circumstances. Growing bracteatum for the purpose of extracting the controlled substance constitutes “manufacture” of thebaine. Manufacturing bracteatum, for purposes other than extraction, might not constitute manufacture of the controlled substance.
If we substitute psilocybin mushrooms for bracteatum, according to the OLC opinion, psilocybin mushrooms are not controlled substances either. DEA could regulate the manufacture of psilocybin mushrooms for the purpose of extracting psilocybin. There isn’t any statement, however, about growing psilocybin mushrooms for any other purpose.
Fourth, some history. Around the time of enactment of the CSA, some plants were controlled by international law and others not. As the text and history of the CSA show, international treaty commitments heavily influenced the CSA’s design. Marijuana, coca leaves, and opium poppies were included in the Single Convention of 1961, an international treaty preceding the CSA, because they were drugs of international concern. Those plants appear in the CSA schedules years later. No surprise there. Peyote also got written into the CSA along with a special exemption in regulations for the Native American Chruch due to sensitivities toward Native American ceremonial use in the United States. Psilocybin mushrooms and other plants not included in the Single Convention, which weren’t that much of a concern, were left out.
During the discussions on the 1971 Convention on Psychotropic Substances, however, the issue of how to deal with hallucinogenic plants with traditional uses came up. Interestingly, the United States agreed “that it was not worth attempting to impose controls on biological substances from which psychotropic substances could be obtained. . . . The American Indians in the United States and Mexico used peyote in religious rites, and the abuse of the substance was regarded as a sacrilege.” And it took the position (page 38) that no attempt should be made at restricting the production of substances used in religious ceremonies. Australia said, “No attempt should be made to control biological products; for the purposes of the Convention, it was the process of extraction which was important . . .”
The point here is that around the enactment of the CSA, whether and to what extent hallucinogenic plants ought to be subject to control was at least a live debate—providing additional evidence that these plants were not already subject to control.
Despite the textualist and historical appeal of this theory, I wouldn’t count on it prevailing in court. At least, not yet. Therefore, this is not legal advice of any kind.
Even so, the theory advances not only a coherent theory of “plant medicine” consistent with the CSA’s text and history, but a laudable and sensible policy goal. The same argument advanced here about psilocybin mushrooms could, of course, be extended to ayahuasca, another plant containing a controlled substance (DMT).
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