Federal Law Enforcement, Courts Consider Legality of Ayahuasca and Related Products

AyahuascaThe federal system of drug laws in the U.S. is very simple and straightforward with regard to some substances and extremely ambiguous for others. Drugs categorized in Schedule I of the Controlled Substances Act (CSA) are effectively banned for any and all purposes. Organizations may apply to the Drug Enforcement Administration (DEA) for a religious exception, which would allow the use of certain scheduled substances for specific religious purposes. Ayahuasca, also known as yagé, is a tea made using plants from South America that contain a psychedelic compound. It is gaining popularity in the U.S. In late 2015, an organization claimed to have obtained the legal right to use ayahuasca in religious ceremonies, but the DEA appears to have had other ideas. The organization halted its activities, and the legal status of ayahuasca remains unclear.

The CSA categorizes controlled substances in five schedules, with Schedule I being the most restricted. This includes a psychedelic compound called N,N-dimethyltryptamine, or “DMT.” 21 U.S.C. § 812(c)(I)(c)(6), 21 C.F.R. § 1308.11(d)(19). Ayahuasca is a tea made using leaves from two plants:  a vine commonly known as ayahuasca and a shrub known as chacruna. Ayahuasca leaves contain compounds that interact with naturally occurring DMT in chacruna, resulting in a tea that people can drink in order to feel the effects of the DMT. The ayahuasca plant itself is therefore not illegal under the CSA, but the chacruna plant, and any product that includes chacruna leaves, would be considered a Schedule I controlled substance.

The DEA can grant exceptions to its regulations after receipt of a written petition. 21 C.F.R. § 1307.3. The agency’s director has broad discretion to grant or deny such a request. The Religious Freedom Restoration Act (RFRA) prohibits the government from “substantially burden[ing] a person’s exercise of religion” without demonstrating the measure is the “least restrictive means” of pursuing a “compelling governmental interest.” 42 U.S.C. § 2000bb-1. The U.S. Supreme Court ruled in favor of a church in a RFRA case involving ayahuasca, holding that the federal government’s seizure of the tea did not serve a compelling government interest. Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418 (2006).

With regard to requests for exceptions allowing the use of controlled substances for religious purposes, a guidance document issued by the DEA in 2009 identifies what must be included in a written petition. In addition to the elements required under RFRA, the petition must describe the religion’s history, beliefs, and practices. It must identify specific practices that require the use of a controlled substance and the specific controlled substance the petitioner wants to use. It must also state the amount of the substance needed and the details of where, when, and how it will be manufactured or imported.

An organization based in Washington State announced in late 2015 that it had obtained an exception that would allow it to use ayahuasca in religious ceremonies. It called itself the first legal and public ayahuasca church in the U.S. This apparently did not sit well with the DEA, which disputed the exception claimed by the organization. Between court decisions and DEA guidance, the process for becoming a legal “ayahuasca church” appears to have been established, but it did not happen in this case.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified drug crime lawyer Michael J. Brown has spent more than 20 years advocating for the rights of defendants facing charges in West Texas state and federal courts. To schedule a confidential consultation to discuss your case, contact us today online or at (432) 687-5157.

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Lawsuits Challenge Police Use of Field Drug Testing Kits, Texas Criminal Lawyer Blog, January 25, 2017

Federal Administrative and Court Decisions Paint Uncertain Picture Regarding Enforcement of Marijuana Laws, Texas Criminal Lawyer Blog, January 25, 2017

Photo credit: Awkipuma (Own work) [CC BY 3.0], via Wikimedia Commons.