Psilocybin mushrooms, also called magic mushrooms, are psychedelic drugs that can lead to hallucinations and altered thinking. The laws around psilocybin can be challenging to keep up with since there is some ambiguity and confusion between federal, state and local laws.
As psychedelics are growing in popularity across the country for therapeutic, medicinal, spiritual, and recreational purposes, understanding the laws is crucial for avoiding penalties and staying within your rights.
Psilocybin is a naturally occurring drug found in over 200 species of fungi. Some compare its effects to that of drugs such as:
- Lysergic acid diethylamide (LSD)
- N, N-Dimethyltryptamine (DMT)
Users of psilocybin can experience negative reactions, ranging from dependence to overdosing. Ostensibly because of its perceived potential harm, the drug was included in the Controlled Substance Act enacted by the 91st United States Congress and signed into law in 1970. Psilocybin is a Schedule I substance, meaning the federal government deems it to have a high likelihood of abuse and addiction and no approved uses.
In recent years, researchers have completed clinical trials using psilocybin-assisted therapy for treatment. The results were that the drug could benefit individuals suffering from post-traumatic stress disorder and depression. In addition micro-dosing psilocybin has become more and more common. As psilocybin enters the mainstream, it’s important to recognize federal, state and local laws and possession penalties.
Is Psilocybin Illegal?
Psilocybin (the chemical), psilocybin mushrooms, and anything containing psilocybin are illegal at the federal level and in every state in the United States.
I know, I know, a few cities and the State of Oregon have decriminalized some psychedelics, but decriminalization does not create any kind of legal, regulated market. And yes, Oregon will eventually have a regulated market but not until at least 2023. And, of course, there are a few companies who are paving the way with research under FDA auspices, but that doesn’t create a legal market either. So today, selling psilocybin just isn’t legal.
In spite of all of this, where there’s a law, there’s always a budding entrepreneur trying to find a loophole . . . but probably breaking that law. And that’s where we get to the question of whether psilocybin kits are legal.
Federal Laws on Psilocybin Spore Kits
Spore kits allow people to cultivate psilocybin but generally don’t contain the drug. So the argument goes that because spore kits are psilocybin-free, they must be legal, but there are a lot of problems with this argument.
Let’s first look at federal law. Under the Controlled Substances Act (CSA), psilocybin is a Schedule I narcotic alongside heroin. “But spore kits don’t have any psilocybin!” one might say. Well, the CSA prohibits the knowing or intentional “manufacture” of a controlled substance.
The CSA defines “manufacture” to include “production,” which in turn is defined to include “cultivation, growing, or harvesting of a controlled substance.” So while a spore kit may not contain psilocybin per se, the use of the spore kit to cultivate psilocybin mushrooms probably violates the CSA.
Selling a spore kit likewise is an issue for a number of reasons.
- Drug paraphernalia: It is illegal under the CSA to sell drug paraphernalia. This term is broadly defined to include “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, . . . [or] producing . . . a controlled substance.” Remember the definitions of manufacture and produce from above? Well, this seems to hit the mark — at least to the extent that a spore kit is primarily intended to be used for these purposes. And it’s kind of hard to see how they would not be intended to be used for these purposes.
- Conspiring to commit a crime: It is illegal to attempt or conspire to violate the CSA. So if someone sold a spore kit that was intended to be used to cultivate psilocybin, that could be considered an attempt conspiracy to violate the CSA whether or not it was actually cultivated.
- Assisting in a crime: It is also illegal to aid and abet in the commission of a crime. If a purchaser was convicted of producing psilocybin mushrooms, the seller could also face liability.
State Laws on Psilocybin Spore Kits
What about the states? Every state is different but generally will have laws similar to the CSA relative to things like paraphernalia, attempts, etc.
While cannabis-friendly states may provide exemptions for cannabis accessories from criminal paraphernalia charges, that certainly doesn’t apply to psilocybin paraphernalia. Some states like California go the extra step and do things like this:
[E]very person who, with intent to produce [psilocybin], cultivates any spores or mycelium capable of producing mushrooms or other material which contains such a controlled substance shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.
. . .
Every person who transports, imports into this state, sells, furnishes, gives away, or offers to transport, import into this state, sell, furnish, or give away any spores or mycelium capable of producing mushrooms or other material which contain [psilocybin] for the purpose of facilitating a violation of [the prior paragraph] shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.
So in sum, it is illegal to cultivate spores in California that are even capable of producing psilocybin, and it’s likewise illegal to import or sell such spores.
There’s a lot of misleading information online about spore kits (big surprise), but the bottom line is that even though federal law doesn’t explicitly mention spore kits, that does not mean they are legal. In fact, there is sufficient law that the federal government could latch onto to claim they are not legal. Moreover, states generally have similar laws, and some expressly call out spore cultivation.
Penalties for Psilocybin
Possession or knowledge of possession of a controlled substance can result in various penalties depending on factors like:
- The state the crime occurred in
- How the CSA classifies the substance
- Number of previous offenses
- Quantity of the controlled substance
Since psilocybin is a Schedule I drug, its penalties can be severe and may include:
- Prison time: If a person is found guilty of possession, they could face incarceration for their crime. Depending on the case, if the person intended to distribute the controlled substance, prison time could range from a few days to as many as 20 years.
- Fines: Those convicted of possession may also have to pay fines. Monetary penalties could range anywhere from $100 to $10 million for an individual with no prior offenses.
- Probation: Anyone who faces legal penalties for controlled substances could be subject to a probation sentence.
In addition to these legal punishments, a convicted person could also have to participate in diversion programs that may involve behavior modification or drug counseling. In some states, a drug offender may be sentenced to a stay in a drug treatment program instead of going to jail.
Reach Out to Harris Bricken to Learn More
If you have questions about the legality of psilocybin, Harris Bricken is here to help. We are an international law firm that prioritizes a tailored approach to every case we work on. We will work closely with you to understand your goals so we can create a strategy that can help you succeed and meet your objectives.
Contact Harris Bricken with your questions or concerns regarding regulations today.