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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.
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.
Here is the letter:
January 3, 2024
Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.
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