Law and Politics

Psychedelics and U.S. Law

In 1970, President Richard Nixon signed the Controlled Substances Act (CSA), prohibiting many psychedelics in the United States. (Several states had already prohibited LSD and other psychedelics starting in 1966.) The CSA divides drugs into schedules according to their assessed risk, categorizing the most dangerous, addictive, and harmful substances that are deemed to not have any recognized medicinal use as “Schedule I.” This includes a range of substances, including LSD, psilocybin, cannabis, and heroin. The legislation significantly inhibited research into the potential therapeutic uses of psychedelics for decades.

Some exceptions have been made to allow the use of certain psychedelics in religious ceremonies, and some states and municipalities have deprioritized enforcement of laws prohibiting possession of plant and fungi-derived substances (see below). But these substances remain illegal under federal law.

In recent years, as more clinical trial results show that psychedelics can be used in conjunction with therapy to treat illnesses like depression and post-traumatic stress disorder, legislators pushed to make certain substances available in certain settings. That support is no longer confined to more politically progressive states and municipalities like Oregon, Oakland, and Denver. Rick Perry, the Republican former governor of Texas, has advocated to make psilocybin-assisted therapy available for veterans with PTSD, as have other lawmakers in states including Utah and Oklahoma.

Psychedelics and the United States Food and Drug Administration

The United States Food and Drug Administration has acknowledged the unique potential of some psychedelic-assisted therapies by granting breakthrough therapy designation, or BTD, which gives especially promising drug-development programs access to FDA consultations in order to expedite possible drug approval. In 2017, the FDA granted the Multidisciplinary Association for Psychedelic Studies, a non-profit research and educational organization, BTD to develop MDMA-assisted psychotherapy to treat post-traumatic stress disorder. In 2018, the FDA granted COMPASS Pathways BTD to develop psilocybin therapy for treatment-resistant depression. And in 2019, Usona Institute was granted BTD to develop a psilocybin program to treat major depressive disorder.

Even with BTD, the path to FDA approval of a psychedelic medicine is still arduous and expensive. Ketamine, a Schedule III substance (defined by the Controlled Substances Act as having a moderate to low potential for physical and psychological dependence), is legal in the United States when used for approved medical purposes as an anesthetic. Doctors are also able to prescribe it as an “off-label” treatment for depression; some of the first ketamine clinics offering treatment for depression opened in 2012. In 2019, the FDA approved Spravato, the Janssen Pharmaceuticals esketamine formulation, as part of a therapy protocol for treatment-resistant depression; the following year, it was approved for treatment of major depression with suicidal thoughts. However, Spravato, which is under patent, can cost hundreds of times as much as generic ketamine.

Religious Liberty

The Native American Church has long fought for the legal right to use peyote in religious ceremonies. Between 1916 and 1918, three anti-peyote laws were introduced in Congress. Indigenous leaders, including Comanche Chief Quanah Parker, successfully fought the bills, arguing that they violated the constitutional right to freedom of religion and that peyote is a healing medicine that could help treat alcoholism in Indigenous communities. The Native American Church incorporated in Oklahoma in 1918, hoping that, as a formalized religion, their right to use peyote would then be further protected under the First Amendment. But the fight did not end there. By 1937, most states west of the Mississippi had laws restricting the use, sale, and possession of peyote. 

In 1978, Congress established the American Indian Religious Freedom Act to enshrine protections for Indigenous religious practices. But some state legislatures failed to amend laws prohibiting peyote possession. In 1984, two Indigenous drug counselors working for a nonprofit partnered with the state of Oregon took peyote as part of a Native American religious ceremony. They were fired from their jobs for misconduct and denied unemployment benefits. The case, Employment Division, Department of Human Resources of Oregon v. Smith, ultimately made it to the Oregon Supreme Court, which ruled that the Oregon law prohibiting peyote use violated the Free Exercise Clause of the First Amendment, which gives people the right to practice their religion as long as it doesn’t conflict with “public morals” or a “compelling” governmental need.

On appeal, in 1990, the U.S. Supreme Court reversed the lower court’s ruling. It did so not on narrow, case-specific grounds, but rather by weakening the standing judicial interpretation of the Free Exercise Clause. As the attorneys for the Church commented, the decision, in effect, “rewrote the First Amendment to read, ‘Congress shall make no laws except criminal laws that prohibit the free exercise of religion.’” In other words, laws banning peyote are constitutional as long as they don’t target Native American Church use explicitly. Therefore, Native American Church members must comply with the law and refrain from using peyote, just like everyone else. Scalia went on to argue that granting a peyote exception would open up religious exemptions to all kinds of state laws, including those prohibiting manslaughter, child neglect, and animal cruelty.

The Supreme Court’s surprising ruling galvanized a broad coalition of religious organizations, which petitioned Congress to pass the Religious Freedom Restoration Act of 1993 in order to restore the pre-1990 judicial interpretation of Free Exercise. The following year, Congress made peyote protections for Indigenous people explicit by passing the American Indian Religious Freedom Act Amendments of 1994, which states that “the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful and shall not be prohibited by the United States or any State.” In 1997, the CIty of Boerne v. Flores case limited RFRA to the federal level.

Other religions have also requested religious exemption for the ceremonial use of prohibited substances. In 2006, after years in the federal courts, the União do Vegetal church, a Brazil-based syncretic tradition, won an exemption in the Supreme Court for its use of ayahuasca. One other ayahuasca church, The Church of the Holy Light of the Queen, has also been granted a religious exemption.

The 1971 United Nations Convention on Psychotropic Substances

Similar to the Controlled Substances Act in the United States, there are also international treaties that prohibit the trade and sale of psychedelics. In 1971, the United Nations Convention on Psychotropic Substances divided psychedelics into four categories, ranging from purportedly highly addictive compounds that are rarely used in medical treatments to milder substances that are less likely to be abused and more likely to be prescribed for medical reasons. Most classic psychedelics including psilocybin, DMT, mescaline, and LSD were—and continue to be—categorized along with highly addictive drugs like heroin and cocaine. It’s illegal to sell, buy, or use them in most countries.

However, the 1971 Convention does allow for some exemptions for nations where psychotropic substances are “growing wild” and “are traditionally used by certain small, clearly determined groups in magical or religious rites.” Those countries, including Mexico and Brazil, noted their concern when they signed the Convention and they retained the right to make certain substances (peyote and ayahuasca respectively) legal, although they are still prohibited from exporting those psychedelic compounds.

The Convention also doesn’t include regulations around the plants from which psychedelic compounds are derived. In a 2010 report, the International Narcotics Control Board, which implements the U.N.’s drug conventions and monitors the international drug trade, specified that while cannabis plants, opium poppies, and the coca bush are “subject to specific control measures,” other plants including the peyote cactus; Banisteriopsis caapi and Psychotria viridis, two of the central ingredients in ayahuasca; psilocybe mushrooms; Salvia divinorum; and iboga, are exempt because of their use in traditional religious and cultural rites.

So while psilocybin is classified as a controlled substance and is heavily regulated by countries that have signed the treaty, psilocybe mushrooms like Psilocybe mexicana are not. This gives countries freedom to interpret the treaty differently. Some nations do have domestic laws that prohibit both the plant and its psychedelic derivatives from being imported, sold, or used. For example, France explicitly bans Banisteriopsis caapi and Psychotria viridis while in Germany neither plant is explicitly banned but DMT is illegal.

So what does this all mean?

It’s complicated. The 1971 U.N. Convention and a subsequent 1988 U.N. Convention heavily restrict the buying or selling of psychedelics internationally, but countries have some leeway to make their own determinations about which substances, if any, are legal, and who is allowed to use them.

Explicit Legalization

Some countries do allow the use of specific psychedelics in specific contexts. Brazil, for example, legalized the use of ayahuasca for religious purposes in 1992. In 2008, Peru did the same, designating Indigenous knowledge and use of ayahuasca as part of the country’s cultural heritage.

Psilocybin-containing mushrooms are legal in Brazil, the Bahamas, British Virgin Islands, Jamaica, Nepal, and Samoa.

In the Netherlands the sclerotia (“truffles”) of psilocybe mushrooms are legal. Other psychedelics, including DMT and ayahuasca, are illegal.

Legal Gray Area

In some countries, the laws governing psychedelics are less clear. In the Netherlands, for example, there is no law either explicitly banning or allowing ibogaine or 5-MeO-DMT. In another case, Costa Rica adopted a drug law similar to the 1971 Convention and classes DMT as a Schedule I drug. But the country is also home to numerous ayahuasca retreat centers and the country is experiencing a boom in psychedelic tourism.

Portugal and Spain have both decriminalized the possession of any drug for personal use. But while it isn’t a criminal offense to possess or consume psychedelics in these countries, it is illegal to sell, buy, or trade them.

In Canada, most common psychedelics are illegal, but the country has become more and more lax about enforcing bans on psilocybin and peyote. 5-MeO-DMT is not legally controlled in Canada.

Laws can always change, too. Switzerland briefly legalized LSD in therapeutic settings from 1988 to 1993, then shut the program down for over a decade. Now, MDMA, psilocybin, and LSD can be used in therapeutic settings in Switzerland, but only if other treatments have been ineffective and if preliminary research suggests the substance would be effective in treating the patient. Therapists have to apply to the Federal Office of Public Health for a license to use psychedelics on a case-by-case basis.

The Legality of Psychedelic Research

The 1971 Convention does allow international trade for drugs that have therapeutic value. As an anesthetic, ketamine, for example, can be sold and traded internationally.

But just as the Controlled Substances Act ended most research into psychedelics in the United States, the 1971 Convention almost entirely halted efforts to study these compounds outside of the U.S. In countries that have adopted the treaty, scientists complain that these regulations make it nearly impossible to get psychedelic substances for research purposes. Navigating the bureaucracy is time-intensive and it’s expensive to get the required licensing, proper storage cabinets, and pay for inspection. David Nutt, a researcher at Imperial College London, estimates that it took two years and cost £1500 to get the psilocybin necessary for his first study on psilocybin and depression.

This has started to change in recent years, as researchers compile more evidence that psychedelics have therapeutic value. However, these changes are at the country-level. Canada, for example, has granted some exceptions for legal use of psilocybin under a “compassionate use” provision, which allows only people with life-threatening illnesses to have access to it.

The Nagoya Protocol

In addition to the 1971 Convention, which requires signatory countries to ban some substances that are considered to be dangerous or addictive, the Nagoya Protocol is also part of a larger conversation about the international trade of psychedelics. Fully titled the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, the law was created by the U.N. Environmental Program in 2010 and put into practice by the international community in 2014 to help protect Indigenous knowledge and resources and to ensure that local communities benefit equitably from the use of plants and substances endemic to their regions.

Some scholars argue that the Protocol should apply to psychedelics like the psilocybe mushrooms used by the Mazatec in Mexico, and that any patents on psilocybin-containing drugs owe some reciprocity to the Indigenous community that pioneered their use and cultivated these species for millennia. Similar arguments have been made about ibogaine and mescaline.

But many countries including the United States, Canada, China, and Russia didn’t sign the agreement. The Protocol doesn’t include provisions for enforcing the rules if companies or researchers don’t comply.