Kight on Cannabis: DEA Confirms Legal Status of Magic Mushroom Spores
DEA CONFIRMS THE LEGAL STATUS OF MAGIC MUSHROOM SPORES.
It has become a bit of a parlor game for lawyers to contact the US Drug Enforcement Administration (DEA) and request its position on the legal status of various compounds. Most recently, attorney Michael McGuire of New York Cultivation Law PLLC contacted the DEA to request the “control status” of “magic mushroom spores” under the CSA. In a response dated January 2, 2024, (full letter below), the DEA states:
“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. 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.“
On one level, this is fairly uncontroversial. “Magic Mushrooms” (the term used by the DEA) are not scheduled in the CSA. Rather, two of the compounds they produce, psilocybin and psilocin, are scheduled. Since the spores do not contain these compounds, they are not controlled. On another level, however, this is groundbreaking. The legal status of spores has been hotly contested over the years, and people have been convicted of crimes for selling and using spore kits. Getting a clear position on the control status of Magic Mushroom spores by the DEA will certainly ramp up their distribution. That being said, the DEA did not give a clear green light to the sale of spore kits.
In a nutshell, the kits themselves are not illegal controlled substances under federal law or the laws of most states (though they are illegal in a handful of states) since they do not contain psilocybin or psilocin, schedule 1 drugs under the CSA. Unfortunately, this is not the end of the legal inquiry. The primary legal issue has to do with the marketing and use of the kits.
Depending on how spore kits are marketed or used, they may fall within the definition of “drug paraphernalia”, which includes “equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing… [or] producing” a controlled substance. Marketing a spore kit to grow Magic Mushrooms, or simply using one to grow them, could cause the seller and/or the user of the kit to be prosecuted. This is because, as stated above, the CSA definition of drug paraphernalia uses the terms “manufacture” and “production,” which include “cultivation, growing, or harvesting of a controlled substance.” For this reason, the use of a spore kit to cultivate psilocybin mushrooms violates the CSA. This primarily applies to buyers; however, if the kits are marketed to produce psilocybin mushrooms, then the seller might also be prosecuted for selling drug paraphernalia and conspiring to manufacture psilocybin mushrooms.
In short, this newest DEA letter is a positive clarification of a long-debated issue. However, it does not necessarily open the doors to widespread use and sale of spore kits. At a minimum, buyers and sellers should understand the legal issues with a lawyer, and act accordingly.
