In part 1 of this series, I examined how the DEA denied Soul Quest’s petition for a religious exemption to the Controlled Substances Act (CSA). As I noted, DEA rarely, if ever, responds to or grants petitions for religious exemptions to the CSA. Soul Quest’s denial was one of the few cases where we actually saw DEA’s reasoning. In part 1, I looked at why DEA didn’t believe Soul Quest had a sincere religious belief. And I systematically showed why DEA’s position was flawed.
In today’s post, I’ll look at the second part of the DEA’s denial letter. Specifically, DEA claimed that denying Soul Quest’s religious exemption petition was the least restrictive means of furthering its compelling interest.
What is a compelling interest for purposes of a religious exemption?
The Religious Freedom Restoration Act (RFRA) established a balancing test for evaluating whether government action violates the First Amendment’s religious freedom guarantees. Per RFRA, if a government action burdens someone’s religious practice, that person must show that the action: (1) caused a substantial burden, on (2) a person’s religious exercise. US Supreme Court case law added that the religious exercise must be (3) “sincere.”
If a petitioner can prove those three things, then the burden shifts to the government to show that (1) it took the action to further a compelling interest, and (2) its action was the least restrictive means of doing so. Because DEA claimed that Soul Quest failed to meet its burden above, the government claimed it need not even discuss its own burden. But it nevertheless did so. DEA identified two different interests that it deemed compelling.
Compelling interest 1 – protecting public health and safety
DEA claimed it has a compelling interest in protecting public health and safety from potentially dangerous substances. I’ll break this down:
#1 – DEA views a drug’s presence on Schedule I as automatically problematic
First, DEA suggested that ayahuasca is dangerous merely because it is on Schedule I with all the other really dangerous drugs. Seems like flawless logic! The federal government has never put any non-harmful or lower-risk drug on Schedule I, right? Don’t even think about marijuana…
#2 – Ayahuasca has some side effects, as DEA noted
Next, DEA suggested ayahuasca is dangerous because it can cause certain side effects. It would be silly to deny that ayahuasca can have negative effects for some people (e.g., consuming it before driving, bad trips, etc.)…
#3 Source matters for religious exemption petitions
DEA pointed out that Soul Quest’s source plant material was labeled as “aromatic herbs” or “samples” that were sold only for purposes of soap and candle making. It said that the use of plants not intended for human consumption “poses obvious potential risks to human health and safety.”
These risks are apparently so obvious that DEA just decided not to explain them. Again here, we have a massive logical gap – just because something is not labeled for human consumption does not mean it cannot be consumed by humans. Marketing choices do not dictate safety.
Compelling Interest 2 – Preventing Diversion of Controlled Substances
DEA next claimed that it has a need compelling interest in preventing diversion of controlled substances.
#1 DEA finds even more source issues
DEA pointed out that in O Centro, the plaintiffs got ayahuasca tea directly from religious groups in South America. Soul Quest apparently imported herbs from an herb company in the Netherlands. For some reason, DEA believed that it could not track Soul Quest’s shipments. It never really explains though why a shipper from South America is more trustworthy than one in the Netherlands. Like with many other parts of DEA’s denial of the religious exemption petition, DEA just made a statement with no real support.
#2 Indirect shipment is a problem
Federal law and regulations require that controlled substance importers ship the substances directly to a DEA registrant. DEA found evidence that, in a few cases, the company in the Netherlands shipped its products to an intermediary first. This created chain of custody issues for the DEA. It seems pretty obvious that DEA could have just conditioned granting the petition on Soul Quest receiving direct shipments and implementing safeguards. Our firm handles a lot of regulatory matters across wide varieties of industries and I find it truly bizarre that a regulatory won’t give a group the ability to come into compliance before just saying no. And fundamental liberties are at stake no less.
#3 Candor is key
DEA cited law which apparently holds that candor for registration applicants is key. Without having closely studied that case law yet, I’d question the applicability as a petition for a religious exemption is not a registration. As I’ve noted before (see below posts) DEA failed to go through the federally mandated rulemaking process to create this petition. So it at least feels a bit unfair that it’s citing case law that seems to discuss law that applies to (a) completely different registration processes (b) for which DEA actually went through the correct legal process.
Either way, DEA claimed that Soul Quest refused to discuss certain plans for compliance with the DEA on Fifth Amendment grounds. Somehow, DEA equated this with a lack of candor and didn’t believe Soul Quest had any Fifth Amendment rights to protect. The latter point is nonsense – given DEA’s proclivity for denying petitions, Soul Quest had to know that giving the DEA information would incriminate it if its members later used psychedelics. And merely not discussing something is different from lack of candor. In any case, if it is true that Soul Quest would not commit to importing in some manner that was close to what federal law requires, then this is probably a point off their book.
I should also point out that Soul Quest told DEA straight up that it wanted to implement extra physical safeguards to prevent diversion. DEA brushed this aside because of the “lack of candor” at Soul Quest.
#4 Sticking to policies
DEA pointed out that Soul Quest has detailed screening and monitoring procedures. But it believed there were “allegations” that it failed to follow them. It pointed to one example of a wrongful death lawsuit that is ongoing (i.e., not proven) and one woman who was taken to a hospital and was told by hospital staff that this had happened before (major hearsay issue). DEA even noted that as of the date of the denial, that hospital hadn’t even responded to its subpoena for information on this point! So effectively, DEA has denied a petition on the grounds that Soul Quest does not follow its procedures based on two cases out of the presumably hundreds or thousands of people who have consumed ayahuasca at Soul Quest.
Key takeaways from DEA’s denial of Soul Quest’s religious exemption petition
There are some key takeaways from DEA’s denial of Soul Quest’s religious exemption petition:
- DEA is going to simply recite its parade of horribles about ayahuasca or other psychedelics – they are on Schedule I, they have some side effects, sometimes people have bad experiences, and so on.
- Sources and methods may need to be disclosed and DEA seems to believe that petitioners have no Fifth Amendment rights.
- Direct shipment and physical security safeguards will be key.
- Importation of plant material that is intended for human consumption rather than advertised for other uses is apparently key.
Unfortunately, most of the time, how DEA denies religious exemption petitions is a total mystery. Soul Quest’s petition is one of the few denials where DEA has taken the time to respond. Hopefully that will all change soon. For more of my Psychedelics Law Blog posts on religious freedom issues, see:
- Religious Use of Psychedelic Drugs Under Federal Law: A History
- How Religious Groups Can Petition to Use Psychedelics Legally
- Another Win for Religious Use of Psychedelics: New Hampshire v. Mack
- DEA Violates Religious Freedom on Psychedelic Drug Use
- Can Psychedelic Religions Obtain 501(c)(3) Status?
- Religious Exemptions are Procedural Nightmares
- How DEA Denies Religious Exemption Petitions: Part 1