Why Psychedelics Are Illegal
Why are psychedelics illegal?
So, you have been reading all of the wonderful benefits about psychedelics and you are pondering the question as to why psychedelics are illegal. Is this because they are the pharmacological equivalent of lawn darts or is it simply an other example of enforcement run amok?
I think the question you are really trying to ask is “What is the reasoning behind the legal status of psychedelics” and this is what we are going to lay out for you today.
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Why Are Psychedelics Illegal?
Well, if you insist on asking a simple question, I’ll give you simple answer. The explanation of why psychedelics are illegal is because the government says so.
In the US, it is because they are listed as Schedule 1 drugs by the DEA. In Canada, psychedelic drugs are “controlled substances” under the Controlled Drugs and Substances Act (CDSA). Under the CDSA, most psychedelics are Schedule 3 substances, including LSD, psilocybin and psilocin (magic mushrooms), mescaline (peyote and San Pedro cactus), and DMT (found in many plants, but most commonly an ingredient in ayahuasca).
I am assuming you came here looking for something a little more substantive than this on the background of the legal status of psychedelics, so let’s start with a little walk down drug enforcement memory lane.
The Modern History Of Drug Enforcement
For one of the iconic figures of the psychedelic movement, Terence McKenna, psychedelics were as “catalysts of intellectual dissent.” In The Archaic Revival, he hypothesized that psychedelics had made illegal “not because it troubles anyone that you have visions” but because “there is something about them that casts doubts on the validity of reality.”, making it difficult, for societies to accept them.
Of course, you are free to take this as the rationale for the legal status of psychedelics, but I think it gives drug enforcement policies too much credit for being insightful and enlightened for interpreting the impact of this class of drugs in such a way. The real answer, much like most things in life, is much simpler.
The Federal Bureau of Narcotics
The Federal Bureau of Narcotics (FBN), which became the Drug Enforcement Agency (DEA), was the driving force behind criminalization. Borrowing Harry Anslinger’s use of cannabis legislation to target Mexicans and African-American jazz musicians by tightening restrictions on marijuana for political means, the attack on psychedelics provided a distraction from the ongoing Vietnam War.
Beginning in 1968 with the Staggers-Dodd Bill, which amended the Food, Drug, and Cosmetic Act making possession of psilocybin mushrooms a federally illegal act and culminating introduction of the drug scheduling system with the passage of the Comprehensive Drug Abuse Prevention and Control Act in 1970. In addition to scheduling, the act forced pharmaceutical companies to keep strict records and physical security of their drug stocks.
Understanding Drug Scheduling
Drug schedules classify drugs, substances, and chemicals into distinct drug categories that are defined by medical use and each specific drug’s potential for abuse and dependency.
Schedule 1 drugs have a high potential for abuse and offer no therapeutic value; Schedule 5 drugs are considered the least addictive with the most potential for clinical use.
In the US, psychedelics were all labeled Schedule 1, while in Canada, some are schedule 1 while others are schedule 3. This is despite thousands of clinical studies conducted in the fifties and early sixties that showed the potential efficacy of substances like LSD in the treatment of mental health issues and addiction.
The Convention on Psychotropic Substances of 1971
The next stop on our tour of historically bad decisions in drug enforcement is the UN Convention on Psychotropic Substances of 1971, which updated
The Single Convention on Narcotic Drugs of 1961 by including controls for psychoactive drugs such as amphetamine-type stimulants, barbiturates, benzodiazepines, and psychedelics.
During the 1960s, drug use increased in Western developed nations. “Young” people began using hallucinogenics, stimulants, and other drugs on a widespread scale and many jurisdictions had no laws under which to prosecute users and traffickers of these new drugs
In 1968 the United Nations Economic and Social Council (ECOSOC) called on nations to limit the use of such drugs to scientific and medical purposes and to impose import and export restrictions. The problem was that ECOSOC’s United Nations Commission on Narcotic Drugs could not reach an agreement on the applicability of the Single Convention on Narcotic Drugs, 1961 to psychoactive substances as the way the Single Convention was structured was that it precluded any interpretation allowing international regulation of these drugs under that treaty. So much to the disappointment of bureaucrats and enforcement agencies everywhere, a new broader scoped convention would be required in order to bring those substances under control.
According to Canadian government reports, the development of this convention was quite divisive, with two factions forming. According to the report, “One group included mostly developed nations with powerful pharmaceutical industries and active psychotropics markets . . . The other group consisted of developing states…with few psychotropic manufacturing facilities”.
As with all things in life, the issue boiled down to the dollars and cents of it all.
The “organic drugmaking” (this may be the best euphemism for drug growing I have ever heard) states suffered economically from the 1961 Single Convention’s restrictions on cannabis, coca, and opium, fought for tough regulations on synthetic drugs. The “synthetic drug-producing” states opposed those restrictions.
And to no one’s surprise, the
developing “organic drug making” states’ lobbying power was no match for the pharmaceutical industry ability to push things in their favor, so the international regulations that emerged were considerably weaker than those of the Single Convention.
Meanwhile, In Canada….
In Canada, controlled substance were regulated by the Food and Drugs Act. Parts III (enacted in 1961) and IV (enacted in 1969) provided for implementation of controls required by the Convention on Psychotropic Substances.
- Part III dealt with “controlled” drugs such as amphetamine, methaqualone, and phenmetrazine, which have legitimate medical uses.
- Part IV focused on Schedule H “restricted drugs”, those whose only legitimate use is for scientific research, such as the hallucinogens LSD, DMT, and MDMA. These parts established eight classes of regulated substances, ranging from Schedules A to H.
The 1996 Controlled Drugs and Substances Act repealed Parts III and IV.
Politics: The Real Reason Why Psychedelics Are Ilegal
If you made it through all the “in depth legal reasoning”, which basically boils down to “Because I said so”, something not much different than what you heard from your parents as a child when you asked them for their reasoning as to why you were prohibited from doing something, like sitting too close to the TV or playing with lawn darts….(wait, those were actually dangerous).
Without wanting to sound all tin foil hat, the main motivations behind why psychedelics are illegal boils down to the politics of Richard Milhouse Nixon.
As written in Harpers Magazine, the war on drugs was simply an attempt by Nixon to get reelected by creating an enemy and then campaigning against it. As quoted by Dan Baum in 1994, John Ehrlichman, the convicted Watergate scandal conspirator, said the drug war meant to be used as a tool to attack Nixon’s political opposition (that is not so coded language for black people and critics of the Vietnam War).
Baum also points out that since its creation as a political tool, the war on drugs has been used by almost every president, Republican or Democrat alike, ever since.
The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”John Ehrlichman as quOted by Dan Baum
But let’s get real for a moment, why are you really googling “Why psychedelics are illegal”? Is it maybe because you want to know how you can get your hands on some with minimal legal repercussions?
Can You Legally Obtain Psychedelics?
Brazil, Vietnam, Jamaica and the Netherlands allow recreational consumption of psilocybin mushrooms.
Can You Get Legal Psychedelics In the United States?
As we have written previously, the movement to decriminalize psilocybin in the United States began in the late 2010s, with Denver, Colorado becoming the first city to decriminalize psilocybin in May 2019.
Supporters of the movement have cited emerging research that indicate potential medical use for the drug. In November 2020, voters passed Oregon Ballot Measure 109, making Oregon the first state to both decriminalize psilocybin and also legalize it for therapeutic use.
Having said that, let’s be very very clear – The use, sale, and possession of psilocybin in the United States, despite state laws, is illegal under federal law.
Peyote is decriminalized under US federal law for Indigenous people. The 1994 Amendment to the American Indian Religious Freedom Act of 1978 (AIRFA) provides 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.” The National Council of Native American Churches (NCNAC) requested that peyote not be included in decriminalization legislation, citing a need to preserve the plant, as well as the sacred tradition it belongs to.
The President of the Native American Church (NAC) of South Dakota, Sandor Iron Rope believes the OK’ing of these substances without cultural context is at the root of the problem. The California decriminalization bill excluded peyote from the state’s list of decriminalized drugs due to input from indigenous people. However other jurisdiction have decriminalized peyote, so to say the point is contentious is probably an understatement.
Current US Legal Challenges to Psychedelic Prohibition
Although not intended to advance the cause of psychedelic legalization for recreational purposes, The Advanced Integrative Medical Science Institute (AIMS) filed suit against the DEA in March 2021 over its refusal to accommodate right to try laws to permit the treatment of terminally ill patients with psilocybin.
In the case, AIMS cited the federal Right to Try Act (RTT) that permit certain patients who have been diagnosed with life-threatening diseases or conditions access to investigational medications not yet approved for general use by the U.S. Food and Drug Administration (FDA).
A bipartisan group of attorneys general from eight U.S. states and the District of Columbia has sided with cancer patients in a lawsuit against the federal Drug Enforcement Administration (DEA) that seeks legal access to psilocybin, a compound found in psychedelic mushrooms, for end-of-life care. And if you want more proof that hell may have frozen over, both the the Goldwater Institute, a conservative libertarian think tank that has been a leader in drafting and sponsoring state and federal right-to-try legislation, and the ACLU of Washington filed separate amici briefs in the case.
The argument focuses on whether the DEA’s conclusion that it could not waive any part of the federal Controlled Substances Act (CSA), which bans psilocybin except for limited research purposes, could even be appealed.
The clinic, the Advanced Integrative Medical Science (AIMS) Institute, asked the DEA for permission to use psilocybin under Washington and federal “right to try” laws, to which the DEA responded that there was no way for it to grant a waiver for the use of a Schedule I drug under right-to-try laws.
Court documents indicate that the clinic is basing its legal argument on the fact that a response to a request for instructions cannot stand as a final order and the DEA’s position is there is nothing the clinic can do in terms of an administrative process of appeal.
The U.S. Department of Justice, arguing for the DEA, said the agency’s determination that the CSA did not allow it to grant waivers under right-to-try laws was not subject to review. Further more, when asked how the clinic could get the issue before a court, the DoJ responded that if the clinic administered psilocybin, and the DEA brought an enforcement action, it could challenge that action as unlawful.
The judge handling the case seemed to indicate that this was a non starter for the DEA, as the judicial process does not require a party to go and subject themselves to liability in order to appeal a current law. A ruling on this matter has not been handed down.
Can You Get Legal Psychedelics In Canada?
Unless you have either a Section 56 exception or a dealer’s licence, the answer is simply no. The Controlled Drugs and Substances Act (CDSA) prohibits all uses of controlled substances unless an exemption is granted under section 56 of the CDSA or the as the regulations allow.
Section 56 Exceptions
Section 56 exemptions enable an approved medical professional to prescribe and even ingest select controlled substances without legal consequence, in order to better treat people with otherwise treatment-resistant conditions.
Section 56 exemptions are the first step toward achieving medical recognition for psychedelic substances, such as MDMA, psilocybin, LSD, and ibogaine that are being studied for use in psychedelic-assisted psychotherapy in Canada. The Minister of Health can grant exemptions under section 56 of the CDSA to use controlled substances if it is deemed to be necessary for a medical or scientific purpose or is otherwise in the public interest. It is not clear exactly how and when this exemption may be granted for psychedelics.
In 2017, Bruce Tobin applied for Canada’s first class-action exemption to criminal drug laws on behalf of all terminally ill cancer patients so they could receive medical psilocybin to treat their end-of-life emotional distress.
Denied by Health Canada after three years of negotiation, it began to approve individual patient applications in August, 2020 – at least 38 by now – under Section 56 of the Controlled Drugs and Substances Act.
Any person who ordinarily resides in Canada or a corporation, which has a head office in Canada, is eligible to apply for a dealer’s licence for controlled substances. This allows the import, export and sale of psychedelics to an institution for clinical or research purposes authorization from Health Canada.
While no law prohibits the sale of magic mushroom spores and grow kits, the argument for legality of spores is premised on the fact that the spores do not contain a controlled substance – there is no psilocybin in the spores themselves.
The peyote cactus is specifically exempt from the Schedule 3 controlled substances list under the CDSA, despite it containing mescaline, and is legal to grow, sell, and consume in Canada. But extracting and isolating the mescaline from the peyote plant would violate the CDSA as one would then be in possession of a controlled substance: mescaline.
This exemption for peyote alone is because of the historical significance of peyote with Canada’s Indigenous communities.
Conclusion: Why Psychedelics Are Illegal
If you’ve read through this article and come to the conclusion that the answer to the question of “Why psychedelics are illegal” is at best an example of the nanny state gone overboard or at worst, a political scheme aimed at maintaining power based on the creation of political boogey men, you are probably on the right track.
Learn More About Decriminalization
If you are curious about the decriminalization of psychedelics, check out these other articles on Frshminds:
- The Decriminalization of Psychedelics in Canada
- Talking Psychedelics: Paul Lewin of the Cannabis and Psychedelics Law Group LLP