On January 2nd, 2024, Drug Enforcement Agency (“DEA”) representative, Terrence L. Boos, Ph.D., responded to an inquiry from Michael McGuire from New York Cultivation PLLC regarding the federal legality of “magic mushroom” spores under the Controlled Substances Act (“CSA”). Although the psychoactive components of magic mushrooms – psilocybin and psilocin – are listed in Title 21 of the United States Code (U.S.C.) § 812 Schedule I and Title 21 of the Code of Federal Regulations (CFR) § 1308.11(d), Dr. Boos clarified that so long as “the mushroom spores (or any other material) do not contain psilocybin or psilocin (or any other controlled substance) then the material is not controlled under the CSA.” He further stated that “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.”
Although the CSA has never explicitly banned mushroom spores that can be used to produce so-called “magic mushrooms,” it has created a gray area for sellers and buyers of mushroom spore kits over the years as some have even been convicted for selling and/or using such kits due to broad encompassing provisions of the CSA. For buyers, the CSA strictly prohibits the “knowing or intentional manufacture of a controlled substance.” Pursuant to the CSA, the term “manufacture” includes “production,” which is further defined to include “cultivation, growing, or harvesting of a controlled substance.” So, while the mushroom spore kit may not contain psilocybin or psilocin, the person’s use of the kit to cultivate psilocybin mushrooms would be in violation of the CSA.
Moreover, the commercial sale of mushroom spore kits creates a more complex spiderweb of legality issues. Under the CSA, it is illegal to sell “drug paraphernalia.” This term is broadly defined to include “equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, . . . [or] producing . . . a controlled substance.” Thus, if the spore kit is primarily intended to be used to manufacture or produce psilocybin mushrooms or is marketed and advertised to create psychoactive mushrooms, such kit would be considered drug paraphernalia under the CSA and as such, its distribution and use would be in violation of federal law. Furthermore, if the seller’s mushroom spore kits are marketed and/or advertised to allow the cultivation of psychedelic mushrooms, the seller, along with the buyer, would be in further violation of the CSA as it would be considered an attempted conspiracy to violate the CSA regardless of whether such psychoactive mushrooms were cultivated.
Even though this is a clarifying step on the federal legality of mushroom spores, this does not mean it’s a one-stop-shop ending the question of legality of mushroom spore kits in all fifty (50) states as many states have their own version of the CSA. In Idaho and Georgia, these states have adopted laws that specifically ban the transport and sale of psilocybin mushrooms spores. Further, even though several cities in California have decriminalized psilocybin mushrooms in recent years, the state has its own restrictions regarding the transport and sale of psilocybin mushroom spores.
As discussed in Marijuana Moment, the “spore versus mushroom” debate is similar to the cannabis seed versus plant issue that was addressed by Dr. Boos in a January 2022 letter. Under the 2018 Farm Bill, seeds that produce marijuana plants are not federally prohibited so long as they do not contain more than 0.3% THC in dry weight.
While this is no automatic green light to begin selling mushroom spore kits, it is the first clarifying step on the next steps of how to legally sell and purchase such kits. It is imperative to discuss your next steps with expert legal advisors to ensure compliance with state and federal law. If you are interested in discussing your options further, contact us today!