The Legal Status of Psychedelics in the USA

Psychedelics and the law

The main legislation supporting the US federal drug policy is the Controlled Substances Act (CSA). It was passed in 1970 and set out a regulatory framework and system for categorizing controlled substances. It sets rules and penalties around the manufacture, distribution, importation/exportation, possession, and use of potentially harmful drugs.^[1]

Substances covered under the CSA are assigned to one of 5 levels, known as schedules. Schedule I drugs are the most potentially harmful and the most tightly controlled. Drugs categorized as Schedule V substances are considered to be the least harmful and are the least tightly controlled.

The majority of psychedelic drugs are listed as Schedule I substances. This includes LSD, psilocybin, psilocin, mescaline, and DMT.^[2] This means that they are considered to have no therapeutic benefit and a high potential for abuse.^[3]

Some other substances have mild psychedelic effects, like ketamine. These may have varying categorizations.

A brief history of psychedelic legislation in the USA

Before 1962, new drugs and medicines for the US market were subject to few, if any, controls. ^[4] Until this time, LSD was being studied widely as a potential therapy for many different conditions. Once the 1962 Kefauver-Harris Drug Amendments made research into LSD more challenging and expensive, research declined while recreational use increased.

LSD and other psychedelics became associated with counterculture movements and particularly with Professor Timothy Leary. Leary was a divisive figure whose recommendation to “turn on, tune in, drop out” fuelled mainstream concern and moral panic around the effects of potentially dangerous drugs, particularly psychedelics.

In 1970, US legislators passed the Controlled Substances Act, placing psychedelic drugs in the most tightly controlled and enforced sections of the rules with the harshest penalties. This law has remained virtually unchanged since that date, and the federal rules around psychedelic research and use are based on them being harmful and having no medical benefits.

Current psychedelic legal status by state

Psychedelic research and how it affects the law

Psychedelics are some of the oldest drugs known, and their properties have been acknowledged for hundreds, if not thousands, of years. Scientific research into their mechanism of action and effects is far more recent.

LSD was first synthesized in 1938, and researchers quickly became interested in its psychedelic effects. Between 1951 and 1966, around 1000 articles described the results of experimentation with LSD, with a particular focus on its role in assisting psychotherapy.^[8] Many of these were funded by the federal government.^[9]

See also: DMT Therapy, Psilocybin Therapy, and Ibogaine Treatment

The high level of interest in LSD research began to decline in the US during the 1960s and was almost entirely eradicated by the 1970s.^[8] While several factors influenced this change, the Controlled Substances Act (CSA), which was passed in 1970, had a significant impact.

The CSA presents significant barriers for researchers trying to access controlled substances (especially Schedule I controlled substances) for research purposes. This increases both administrative effort and the costs of research.^[6] Funding may also be more scarce, especially from pharmaceutical companies, given the limited prospects for monetising any therapeutic effects.^[10]

Even where research into Schedule I drugs may be possible, a substance’s inclusion on that list reduces research interest and medical knowledge. Heroin research is similarly almost non-existent in the US but popular within the UK, where it is permitted for medical purposes.^[10]

Even now, as interest in the therapeutic benefits of psychedelic substances is increasing dramatically, countries with less restrictive drug laws are taking the lead in research. The Dutch government, for example, is taking active steps to prioritize research into these drugs.^[11]

Religious and cultural exemptions

Some rare exceptions allowing legal hallucinogen use can be found in specific religious and cultural practices. The most notable of these is the Native American Church, which is legally permitted to use peyote in religious ceremonies.^[3]

The Native American Church isn’t a single religious entity. Instead, it is a collection of different tribes, beliefs, and practices. All of these groups use peyote as part of their traditions. They formed the church in 1918 as a way to ensure that their practices would be accepted. These efforts were effective, as laws passed in 1978 and 1994 allow federally recognised Native Americans to use, harvest, and transport peyote (but not other hallucinogens).^[12]

For most states, only Native American religious purposes are considered legal uses of peyote. Other states, including Arizona, permit any religious or spiritual uses of peyote. Using the Religious Freedom Restoration Act, two Brazilian ayahuasca religions have also been able to gain exceptions permitting their use of psychedelics in religious ceremonies.^[13]

Many of the state laws around the legalization and decriminalization of psychedelics have specifically excluded peyote, a psychedelic commonly used by Native Americans in traditional spiritual practices. This is a slow-growing plant that is facing habitat loss. Native American groups have asked that this plant be excluded from relaxing legal rules around psychedelic use to preserve it for their traditional purposes.

Public backlash and opinion

Even in areas where voters have supported increased access to psychedelics, public opinion has not always been consistent. Despite Oregon legalizing the use of psilocybin, for example, several counties and cities have put bans in place. This has sometimes been attributed to concerns around the fentanyl crisis.^[14]

Similar issues are found in Colorado, where concerns about the risks associated with psychedelic use are leading to calls for increased restrictions on treatment centers.^[15]

Global psychedelic laws

The US has some of the tightest laws controlling psychedelics in the world. Many other countries have less stringent rules. Specific psychedelic mushrooms or truffles are legal in Brazil, the Bahamas, the British Virgin Islands, Jamaica, Nepal, the Netherlands, and Samoa.

In other cases, countries have not passed any legislation concerning certain psychedelic substances. The Netherlands, for example, hasn’t included ibogaine or DMT in drug classification systems, leaving them in a legal gray area.

In Switzerland, MDMA, psilocybin, and LSD can be used for therapeutic purposes under tightly controlled circumstances. Other European countries, such as Spain and Portugal, have decriminalized possession for personal use, while Canada is reducing enforcement of laws around psilocybin and peyote.

The future of psychedelics in America

Cannabis has taken a path towards legalization through the state rather than the federal route. The same path may be open to psychedelics if they can be demonstrated to be both safe and effective in ongoing clinical trials.^[17] There does seem to be some momentum to move towards increasing decriminalization and legalization, but this process is likely to be patchwork, with states considering decriminalization being more left-leaning than those that are not.^[17] 

The opportunities for further research into the use of psychedelics in America are increasing. In 2023, the FDA released draft guidance on the use of psychedelic drugs in clinical trials. This represents a step towards acceptance of the potential benefits of psychedelics in treating mental health disorders and may encourage more organizations to engage in this type of research.^[18]

Given the bills recently submitted to state legislatures, some academics and healthcare professionals are concerned that controls around psychedelic use may be loosened in advance of the results of medical research around safety and efficacy.^[19]

Recent years have also seen an increase in the number of Americans attending "wellness retreats" or "healing centers" overseas to access psychedelic drugs. This includes groups not typically associated with counterculture movements, such as veterans, who are seeking relief from serious conditions such as PTSD.^[20] There appears to be a growing appetite for the use of psychedelics within the wellness and well-being industries, which states may be keen to facilitate.