Law Firm Article: What’s the Deal with Salvia Divinorum?

There are lots of psychedelics and psychedelic adjacent substances that are not scheduled under the Controlled Substances Act (CSA). Recently I wrote about amanita muscaria mushrooms and their legal status. Today, I want to talk about a different one: salvia divinorum.

Salvia divinorum is a psychedelic substance. It was often used for religious rituals by indigenous groups. More recently, smoke shops sold salvia divinorum in smokable form – until a number of states began to intercede. In the words of the DEA, “Salvia divinorum is a perennial herb in the mint family that is abused for its hallucinogenic effects.” The active substance in salvia divinorum is Salvinorin A. Unlike psilocybin or some of the more well-known psychedelics, salvia divinorum has relatively short-term effects, which may be why it hasn’t been subject to the same level of scrutiny over the years. Indeed, neither salvia divinorum nor Salvinorin A are scheduled on the CSA.

As I noted when discussing amanita muscaria, the fact that salvia divinorum is not a scheduled drug does not mean it is necessary legal. For one, the FDA has the authority to go after makers or sellers of virtually any product that is touted as having some kind of medical benefits or effects. In such a case, the FDA will claim that the product is an unapproved new drug, which can lead to serious penalties. The DEA’s own fact sheet on salvia divinorum sort of alludes to this when it says that “Neither Salvia divinorum nor its active constituent Salvinorin A has an approved medical use in the United States.”

Even companies that are careful not to make medical claims can face the ire of the FDA just for selling products that the FDA deems to be “adulterated.” And it is very easy for the FDA to claim something is adulterated. See here for the many ways that the FDA can deem foods adulterated, for example. If the FDA can claim that CBD is an adulterant, you better believe that it would do the same for something that can lead to psychedelic experiences.

One big difference between salvia and amanita muscaria is that there are plenty of states that restrict salvia. [As mentioned in my last post, the only state I am aware of that bans amanita muscaria is Louisiana.] Wikipedia has a list of states that restrict salvia here, and while I won’t vouch for the accuracy of everything in there, even if it’s only partially correct, the drug is subject to greater scrutiny than amanita muscaria.

Stay tuned to the Psychedelics Law Blog for more updates on oddly regulated psychedelics like salvia.


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