Are Psilocybin Spore Kits Legal?

30 May Are Psilocybin Spore Kits Legal?

Psilocybin (the chemical), psilocybin mushrooms, and anything containing psilocybin is illegal at the federal level and in every state in the United States. I know, I know, a few cities and the State of Oregon have decriminalized some psychedelics, but decriminalization does not create any kind of legal, regulated market. And yes, Oregon will eventually have a regulated market but not until at least 2023. And of course, there are a few companies who are paving the way with research under FDA auspices, but that doesn’t create a legal market either. So today, selling psilocybin just isn’t legal.

In spite of all of this, where there’s a law, there’s always a budding entrepreneur trying to find a loophole . . . but ultimately probably breaking that law. And that’s where we get to psilocybin spore kits.

Spore kits allow people to cultivate psilocybin. Spore kits generally don’t contain psilocybin. So the argument goes that because spore kits are psilocybin-free, they must be legal. There are a lot of problems with this argument.

Let’s first look at federal law. Under the Controlled Substances Act (CSA), psilocybin is a Schedule I narcotic alongside heroin. “But spore kits don’t have any psilocybin!”, one might say. Well, the CSA prohibits the knowing or intentional “manufacture” of a controlled substance. The CSA defines “Manufacture” to include “production”, which in turn is defined to include “cultivation, growing, or harvesting of a controlled substance.” So while a spore kit may not contain psilocybin per se, the use of the spore kit to cultivate psilocybin mushrooms probably violates the CSA.

Selling a spore kit likewise is an issue for a number of reasons.

1. It is illegal under the CSA to sell drug paraphernalia. This term is broadly defined to include “any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, . . . [or] producing . . . a controlled substance,”. Remember the definitions of manufacture and produce from above? Well, this seems to hit the mark — at least to the extent that a spore kit is primarily intended to be used for these purposes. And it’s kind of hard to see how they would not be intended to be used for these purposes.
2. It is illegal to attempt or conspire to violate the CSA. So if someone sold a spore kit that was intended to be used to cultivate psilocybin, that could be considered an attempt conspiracy to violate the CSA whether or not it was actually cultivated.
3. It is also illegal to aid and abet in the commission of a crime. If a purchaser was convicted of producing psilocybin mushrooms, then the seller could face liability as well.

What about the states? Every state is different but generally will have laws similar to the CSA relative to things like paraphernalia, attempts, etc. While cannabis-friendly states may provide exemptions for cannabis accessories from criminal charges for selling paraphernalia in some cases, that certainly doesn’t apply to psilocybin paraphernalia. Some states go the extra step — like California — and do stuff like this:

[E]very person who, with intent to produce [psilocybin], cultivates any spores or mycelium capable of producing mushrooms or other material which contains such a controlled substance shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.

. . .

Every person who transports, imports into this state, sells, furnishes, gives away, or offers to transport, import into this state, sell, furnish, or give away any spores or mycelium capable of producing mushrooms or other material which contain [psilocybin] for the purpose of facilitating a violation of [the prior paragraph] shall be punished by imprisonment in the county jail for a period of not more than one year or in the state prison.

So in sum, it is illegal to cultivate spores in California that are even capable of producing psilocybin, and it’s likewise illegal to import or sell such spores.

There’s a lot of misleading information on line about spore kits (big surprise), but the bottom line is that even though federal law doesn’t explicitly mention spore kits, that does not mean they are legal, and in fact there is sufficient law that the federal government could latch onto to claim they are not legal. Moreover, states generally have similar laws and some expressly call out spore cultivation.