DEA Response Clarifies Psychedelic Mushroom Spores Are Legal Before Germination

January 9, 2024 · High Times

The U.S. Drug Enforcement Administration (DEA) has made its position on psilocybin and psilocin, two psychedelic compounds produced by “magic” mushrooms, fairly clear as states across the U.S. have begun softening regulations on their therapeutic use. 

Though it may seem contradictory under the current medicinal usage and continued scientific findings showing the potential benefits of psilocybin use under the supervision of a therapist, under the Controlled Substances Act (CSA), the compounds — like cannabis — are classified as Schedule I substances, deeming “no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.”

Though at the start of 2024, the DEA’s Drug and Chemical Evaluation Section Chief Terrence Boos confirmed that mushroom spores, or the reproductive organ of mushrooms — similar to seeds, containing the genetic information needed for new mushrooms to grow and reproduce — are in fact not considered controlled substances under the CSA.

The kicker? The spores must not contain psilocybin, psilocin or any other controlled substances under the CSA. So long as individuals do not actually let spores to germinate, allowing them to eventually grow into fungi containing controlled compounds, the DEA stated they are not classified as controlled substances, according to a response dated Jan. 2, 2024 clarifying the status.

Breakthrough Leaving a Number of Unanswered Questions

“If 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 response reads, as first reported by Kight on Cannabis. “However, 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.“

While this may seem like a given, in that spores on their own do not contain forbidden compounds, the DEA confirmation still acts as a pivotal moment pertaining to the broader conversations surrounding natural psychedelics, like magic mushrooms.

As psilocybin and psilocin have increased in mainstream popularity, many have questioned the legality of selling and using spore kits, with some even being convicted for possessing and selling these materials for public use, as noted by Kight in his report.

It’s possible that sale of these kits may ramp up as the DEA confirmed its position, though the DEA also did not explicitly state that the sale of spore kits is lawful. Making matters even more complicated, some states explicitly prohibit the sale and use of spores on their own.

Kight noted that the distinction ultimately lies in whether these kits are considered “drug paraphernalia,” which largely depends on how consumers use spore kits and how sellers market them. Drug paraphernalia includes “equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing… [or] producing” a controlled substance. 

Therefore, marketing a spore kit as a means to grow magic mushrooms, or even the act of purchasing a kit with the intent to grow mushrooms containing psilocybin or psilocin, could cause the seller or the user to be open to prosecution.

Kight calls the DEA response a “positive clarification of a long-debated issue,” while cautioning readers around the widespread use and sale of spore kits: “At a minimum, buyers and sellers should understand the legal issues with a lawyer, and act accordingly,” Kight writes.

The DEA recently clarified a similar issue pertaining to cannabis, in that cannabis is still a federally prohibited substance while the seeds used to produce the cannabis plant are not, so long as they do not exceed 0.3% THC by dry weight. Seeds falling under that threshold are classified as federally legal hemp, per the 2018 Hemp Bill, as confirmed by Boos in a January 2022 letter.

Rescheduling and DEA’s Continued Interest in Psychedelic Mushrooms

While cannabis is currently in the midst of potentially being reclassified from Schedule I to Schedule III of the CSA, it appears that psilocybin and related compounds aren’t set to follow suit any time soon. 

In December 2023, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected a motion for a rehearing of an earlier court decision in which lawyers for a Washington State doctor inquired about rescheduling psilocybin under the CSA. 

Lawyers had asked the panel to revisit the ruling, specifically to address their argument that federal statute requires a referral to the FDA to conduct a “scientific and medical evaluation and scheduling recommendation.” The court ultimately ordered a remand back to the DEA, effectively denying the rehearing request.

Still, it appears that the DEA is continuing to research the potential benefits behind psilocybin, along with a handful of other banned substances. 

DEA notice posted earlier this month noted a request for 20,000 grams of psilocybin in its 2024 aggregate production quotas, which was previously established in October at 8,000 grams and increased later to 15,000 grams. The DEA also requested 24,000 grams of psilocin, unchanged from its November 2023 amount.

“There has been a significant increase in the use of schedule I hallucinogenic controlled substances for research and clinical trial purposes,” the DEA wrote. “DEA has received and subsequently approved new registration applications for Schedule I researchers and new applications for registration from manufacturers to grow, synthesize, extract, and prepare dosage forms containing specific Schedule I hallucinogenic substances for research and clinical trial purposes.” (Full Story)

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