DOJ Confirms that “Magic Mushroom” Spores are Legal Under Federal Law
January 22, 2024
By Lauren Mendelsohn
In a letter dated January 2, 2024, an agent at the United States Department of Justice (“DOJ”) confirmed that “magic mushroom” spores are legal under US Federal law and are not controlled substances under the Controlled Substances Act (“CSA”) – at least while they are still spores that do not contain any chemicals that are listed in the CSA. However, once the spores start to grow into mushrooms which contain psilocybin, psilocin, and/or any of their salts, isomers, or salts of their isomers, the mushrooms are controlled substances. This is because psilocybin and psilocin (and their salts, isomers, and salts of their isomers), the two main psychedelic compounds in magic mushrooms, are Schedule I controlled substances under the CSA. (21 U.S.C. §182; 21 C.F.R. §1308.11(d))
This is not technically new or groundbreaking information; in fact, the DOJ clearly states in this Informational Bulletin publication from 2002 that:
“…Although the chemicals psilocybin and psilocin and the mushrooms that contain these chemicals are illegal, the spores necessary to grow the mushrooms are not….”
(2002 DOJ Informational Bulletin, “Drugs Youth and the Internet,” page 4).
Nevertheless, it is worth knowing that the DOJ has not changed their position on this topic.
While magic mushroom spores might be legal under US Federal law provided that they do not contain trace amounts of psilocybin or psilocin, the same is not true of California State law. In addition to prohibiting these two chemicals found in psychedelic mushrooms, California’s Uniform Controlled Substances Act also prohibits activities involving “spores or mycelium capable of producing mushrooms or other material which contain a controlled substance…” (Cal. Health & Safety Code §11391).
Several local jurisdictions in California have adopted resolutions purporting to “decriminalize” psychedelic mushrooms and other entheogens, but such resolutions are largely symbolic, and do not change the underlying California State criminal laws or US Federal criminal laws regarding psilocybin, psilocin, and spores. Thus, even if one is located in a city or county that has chosen to treat enforcement of psychedelics laws as a low law enforcement priority, one should be aware of the risks of engaging in activities involving magic mushrooms.
We anticipate a renewed effort to loosen criminal penalties around psychedelic mushrooms in the coming legislative session following Governor Newsom’s veto of SB-58 last year, however the details and extent of any such measure are yet to be seen.
Stay tuned to our blog for more psychedelic policy updates.
This information is provided as a public educational service and is not intended to, nor should be construed as, legal advice. For specific legal questions regarding magic mushrooms, psilocybin, or other psychedelics, please contact the Law Offices of Omar Figueroa at info@omarfigueroa.com or 707-829-0215 to schedule a confidential consultation.