A top Drug Enforcement Administration (DEA) has affirmed that spores that produce so-called magic mushrooms are not, on their own, federally prohibited.
DEA’s Drug & Chemical Evaluation Section Chief Terrence Boos was asked about the legal status of the spores in a letter from attorney Michael McGuire in November, and he sent a response on Tuesday that clarified the agency’s position.
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“If the mushroom spores (or any other material) do not contain psilocybin or psilocin (or any other controlled substance or listed chemical), the material is considered not controlled” under the Controlled Substances Act (CSA), Boos wrote.
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“However, 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,” he said, as Kight On Cannabis first reported.
This isn’t especially revelatory, as its long been understood that the CSA doesn’t explicitly ban spores that can be used to produce so-called “magic mushrooms.” Rather, it lists the key psychoactive ingredients in psychedelic mushrooms, psilocybin and psilocyn, as Schedule I controlled substances.
Because the spores themselves don’t contain those specific compounds, they are uncontrolled under the CSA.
However, it should be noted that while the spores are technically considered federally legal—as long as someone doesn’t use them to produce mushrooms that contain psilocybin or psilocin—states such as California, Georgia and Idaho do prohibit the spores themselves.
The DEA letter still marks an important clarification, though. As attorney Rod Kight pointed out, police have still arrested people for selling or utilizing spore kits. But it’s possible that could be connected to a different question of whether the kits are considered “drug paraphernalia,” which may depend on “how spore kits are marketed or used,” he wrote.
“In short, this newest DEA letter is a positive clarification of a long-debated issue. However, it does not necessarily open the doors to widespread use and sale of spore kits,” Kight said. “At a minimum, buyers and sellers should understand the legal issues with a lawyer, and act accordingly.”
The spore versus mushroom question mirrors another DEA paradox that was addressed in separate, earlier letters from Boos: while marijuana is federally prohibited, the seeds that produce that plant are not (as long as they do not contain more than 0.3 percent THC by dry weight).
If the seeds fall under that threshold, they are considered federally legal hemp, under the definition set out in the 2018 Farm Bill that legalized the non-intoxicating crop. Boos made that distinction in a letter to attorney Shane Pennington in January 2022.
Meanwhile, the DEA official issued another relevant administrative interpretation of cannabis statute last year when he asserted that the agency considers the intoxicating cannabinoid delta-8 THC an illicit Schedule I drug if it’s synthesized from federally legal CBD.
Delta-8 THC products have proliferated on the market since hemp’s legalization, essentially existing in an unregulated legal grey area. If the cannabinoid is naturally extracted from hemp, it’s federally legal. But it’s generally considered common practice to synthesize it from CBD because it’s a more cost-effective process. Some states have taken steps to restrict delta-8 THC, however.
At DEA’s 2023 Supply Chain Conference in May, Boos similarly explained that synthetic cannabinoids are banned, and he said that DEA is in the process of developing a final rule to formally clarify that policy, at the recommendation of the U.S. Department of Health and Human Services (HHS).
Boos also told a lawyer last year that the minor cannabinoids delta-8 THC-0 and delta-9 THC-O are prohibited because they can only be synthetically produced.
Some experts have disputed DEA’s interpretation of the statute on intoxicating hemp-based cannabinoids, however. And a federal appeals court ruled in 2022 that the way that existing rules are written makes delta-8 THC exempt from control, as the law is “silent” on the minor cannabinoid while clearly legalizing hemp extracts and derivatives.
The letter of psychedelic mushroom spores comes after a federal appellate panel denied a motion by lawyers for a Washington State doctor trying to reschedule psilocybin under the CSA. In an order last month, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejected the doctor’s request for a rehearing of an earlier court decision that returned the matter to DEA.
DEA recently announced that it is taking another shot at banning two psychedelics after abandoning its original scheduling proposal in 2022, teeing up another fight with researchers and advocates who say the compounds hold therapeutic potential.
The agency separately backed down from a proposal to ban five different tryptamine psychedelics in 2022 amid sizable pushback from the research and advocacy communities.
DEA is also warning Georgia pharmacies that dispensing THC is unlawful because it remains a Schedule I drug after the state became the first in the U.S. to allow pharmacies to sell medical marijuana, with nearly 120 facilities applying to sell cannabis oil.
It’s additionally calling for the production of even more THC, psilocybin and DMT for research purposes than it initially proposed for 2024—raising its quotas for those drugs while maintaining already high production goals for marijuana and other psychedelics.
Meanwhile, DEA is actively conducting a review into marijuana scheduling after receiving a recommendation from HHS to move it from Schedule I to Schedule III under the CSA. The agency said in a letter to Congress last month that it reserves “the final authority” to make any scheduling decision on cannabis, regardless of what the HHS recommends.
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