Governance

Who Regulates Entheogens, and How

Four systems decide what may be grown, held, given and studied: a federal scheduling statute, a 1971 treaty that the statute answers to, state programs that have moved in the opposite direction, and a religious-exercise standard written by Congress after the Supreme Court withdrew one. They interact, and they conflict. Every legal statement below cites the statute, treaty article or opinion it comes from, and every source was retrieved and read before it was cited.

1. The federal scheduling machine

The Controlled Substances Act gives the Attorney General power to add a substance to a schedule, move it between schedules, or remove it entirely. The power is exercised by rule, and it is conditioned: the Attorney General must find that the substance has a potential for abuse, and must make the specific findings that 21 U.S.C. § 812(b) prescribes for the schedule in question.

Those findings are what a scheduling fight is actually about. Schedule I requires all three of the following: a high potential for abuse; no currently accepted medical use in treatment in the United States; and a lack of accepted safety for use under medical supervision. Schedule II shares the first element but presupposes an accepted medical use, which is why the difference between the two schedules turns on the second finding far more often than the first.

Before starting either a control or a removal proceeding, the Attorney General must ask the Secretary of Health and Human Services for a scientific and medical evaluation and a recommendation. The statute then does something unusual with the answer:

The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance.21 U.S.C. § 811(b)

Eight factors govern the assessment, set out at § 811(c): actual or relative potential for abuse; scientific evidence of pharmacological effect; the state of current scientific knowledge; history and current pattern of abuse; the scope, duration and significance of abuse; risk to the public health; psychic or physiological dependence liability; and whether the substance is an immediate precursor of something already controlled.

Most of the substances this atlas covers sit in Schedule I(c), the hallucinogen subsection of § 812(c), which names dimethyltryptamine at item 6, ibogaine at 8, lysergic acid diethylamide at 9, mescaline at 11, peyote at 12, psilocybin at 15 and psilocyn at 16.

2. The treaty layer, and the override it carries

The Convention on Psychotropic Substances was adopted at Vienna on 21 February 1971. Its Schedule I captures the classical psychedelics by chemical name — lysergide, mescaline, DMT, psilocybine and psilocine among them — and Article 7 tells the parties what to do about them:

In respect of substances in Schedule I, the Parties shall: a) Prohibit all use except for scientific and very limited medical purposes by duly authorized persons, in medical or scientific establishments which are directly under the control of their Governments or specifically approved by them…Convention on Psychotropic Substances, 1971, art. 7

Two features of the treaty matter for anyone reading the archaeology and ethnography elsewhere on this site. First, the schedules list isolated compounds by chemical designation rather than the organisms that produce them. Second, Article 32(4) separately contemplates the plants: a state on whose territory there are plants growing wild which contain Schedule I psychotropic substances, "and which are traditionally used by certain small, clearly determined groups in magical or religious rites," may enter a reservation as to Article 7 for those plants, excepting the provisions on international trade.

The treaty also reaches back into the domestic statute in a way that is easy to miss. Section 811(d)(1) provides that where control is required by United States obligations under international treaties in effect on 27 October 1970, the Attorney General shall issue an order controlling the substance under whichever schedule best carries out those obligations — and shall do so without regard to the § 812(b) findings and without regard to the ordinary rulemaking and HHS-evaluation procedures of § 811(a) and (b). The scientific findings that appear to gate every scheduling decision are therefore bypassable whenever a treaty obligation supplies the reason.

3. Where the states diverge

State law has moved in a direction the federal schedules have held against. The two clearest instances are Oregon and Colorado, and they took different routes.

Oregon: a licensed service model

Oregon voters passed Measure 109 in November 2020. The enacted text opens with legislative findings about the prevalence of mental illness in the state, and sets out purposes that include developing psilocybin as "a safe, accessible and affordable therapeutic option for all persons 21 years of age and older." Rather than switching on immediately, the measure created a two-year program development period beginning 1 January 2021, during which the Oregon Health Authority and an advisory board built the rules. What emerged is a supervised-administration model: licensed service centers, licensed facilitators, and administration sessions held at a service center. The measure is codified as ORS chapter 475A, Psilocybin Regulation, at sections 475A.200 through 475A.722.

Colorado: decriminalization plus a healing-centre program

Colorado's Proposition 122, titled "Access to Natural Psychedelic Substances," carried the 2022 general election with 1,296,992 votes in favour against 1,121,124 opposed, out of 2,418,116 cast on the measure — a margin of roughly 53.6 per cent. The state's official ballot information booklet described it as requiring a regulated system of access while also decriminalizing possession and use for adults twenty-one and over.

The measure enacted the Natural Medicine Health Act of 2022 as Article 170 of Title 12, and the General Assembly then built the licensing structure in Senate Bill 23-290. That bill defines "natural medicine" as psilocybin and psilocyn, with DMT, ibogaine and mescaline addable only on a recommendation from the board and approval by the state licensing authority, and with DMT and mescaline eligible for inclusion only on or after 1 June 2026. One exclusion is deliberate and worth stating plainly: mescaline under the Colorado scheme excludes peyote, defined as all parts of the plant classified botanically as Lophophora williamsii Lemaire, its seed, and every extract, compound, salt, derivative, mixture or preparation of it. Colorado carved the sacrament of the Native American Church out of its commercial program.

Neither program alters the federal schedules. Psilocybin and psilocyn remain where § 812(c) put them.

4. The religious-use channel

The line of authority here runs through four steps, and each one reversed part of the step before it.

Employment Division v. Smith (1990). Two members of the Native American Church were fired for ingesting peyote sacramentally and were then denied unemployment compensation under an Oregon rule covering work-related misconduct. The Supreme Court held that the Free Exercise Clause permits a state to apply a neutral, generally applicable criminal prohibition to religiously motivated conduct, and declined to require case-by-case judicial weighing of the religious burdens such laws impose.

The Religious Freedom Restoration Act (1993). Congress answered Smith directly. RFRA bars government from substantially burdening a person's exercise of religion even when the burden results from a rule of general applicability, unless the government demonstrates that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. Section 2000bb-1(c) expressly makes the standard available as a claim or defence in a judicial proceeding.

City of Boerne v. Flores (1997). The Court's holding is one sentence in the syllabus: "RFRA exceeds Congress' power." The statute therefore stopped binding the states, which is a structural reason why state-level reform has proceeded through ballot measures and legislation rather than through religious-exemption litigation.

Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006). Against the federal government, RFRA remained fully operative, and the UDV proved it. Members of the church receive communion by drinking hoasca, a tea containing DMT. After Customs seized a shipment and threatened prosecution, the church sued. The government conceded that enforcement would substantially burden a sincere exercise of religion, and rested on three asserted compelling interests: member health and safety, diversion to recreational users, and compliance with the 1971 Convention. It lost on all three at the injunction stage, and the Supreme Court affirmed unanimously — Justice Alito took no part — on 21 February 2006.

The reasoning that carried the case is the one worth remembering, because it turns an existing accommodation into a lever. Everything the government said about the DMT in hoasca applied equally to the mescaline in peyote, and both the Executive and Congress had already made an exception for Native American religious peyote use. The regulation is blunt:

The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration.21 CFR § 1307.31

Congress had gone further in 1994, legislating the protection at 42 U.S.C. § 1996a after finding that ceremonial peyote use had been protected by federal regulation since 1965, that twenty-eight states had conforming laws while twenty-two had none, and that Smith had left the practice exposed. The Court held that this long-standing exception "fatally undermines" the government's contention that the CSA is a closed regulatory system admitting no exceptions, and observed that the exception had been in place since the Act's outset with no evidence that it had impaired enforcement against anyone else.

The four systems at a glance

5. How this atlas governs itself

The same standard applied above governs the rest of the site. Retained substantive claims identify source type, scope, limitations, verification date and a stable claim ID, and the register is published in machine-readable form. Case law and statute cite the United States Reports scan, the court's own opinion, the Statutes at Large or the text of the regulation, in preference to any secondary summary; archaeology cites the excavation report or the dating paper.

Community-origin knowledge is treated as belonging to its community. Living-tradition protocols require documented authorization from the relevant authority before publication, and no Nation, community, church, lineage or tradition is represented as endorsing this atlas absent explicit documented authority. A cultural authority may request correction, contextualization, restriction, attribution change or withdrawal using the form below.

Dose, interaction, legal-risk, RFRA-strength, live-law and ceremony-protocol tools have been removed from this edition rather than shipped in a degraded state. Restoring any of them would require qualified review, maintained provenance, versioning and correction controls. Where the literature genuinely divides — the Shanidar pollen, the Eleusinian ergot hypothesis, whether subjective experience is necessary to therapeutic effect — both positions are stated and both are cited.

Sources

Each source below was fetched and read in full before any claim above was written, and each was checked under two different user agents to guard against a host that answers one and refuses the other.

1. Statute21 U.S.C. § 811 — Authority and criteria for classification of substancesScheduling power, the binding HHS recommendation, the eight factors, and the § 811(d)(1) treaty override.
2. Statute21 U.S.C. § 812 — Schedules of controlled substancesThe § 812(b) findings for each schedule and the Schedule I(c) hallucinogen list.
3. TreatyConvention on Psychotropic Substances, 1971 (UNODC text)Article 7 obligations, Article 32(4) wild-plant reservation, and the Schedule I chemical list.
4. Ballot measureOregon Measure 109 — full enacted text (Oregon Secretary of State)Findings, purposes, the two-year development period and the service-centre model.
5. StatuteORS chapter 475A — Psilocybin RegulationCodification of Measure 109 at ORS 475A.200–475A.722.
6. Election recordColorado 2022 Abstract of Votes — amendment and proposition resultsOfficial county-by-county and statewide totals for Proposition 122.
7. Official guideColorado 2022 State Ballot Information BookletThe legislature's official description of what Proposition 122 would do.
8. StatuteColorado Senate Bill 23-290 — Natural Medicine (signed act)Definitions of natural medicine and healing centre, and the peyote exclusion from mescaline.
9. OpinionEmployment Division v. Smith, 494 U.S. 872 (1990) — U.S. ReportsNeutral, generally applicable laws and religiously motivated conduct.
10. Statute42 U.S.C. § 2000bb-1 — Free exercise of religion protected (RFRA)Substantial burden, compelling interest, least restrictive means, judicial relief.
11. OpinionCity of Boerne v. Flores, 521 U.S. 507 (1997) — U.S. Reports"Held: RFRA exceeds Congress' power," ending RFRA's application to the states.
12. OpinionGonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006) — U.S. ReportsHoasca, the three asserted compelling interests, and the peyote exception that undermined the closed-system argument.
13. Regulation21 CFR § 1307.31 — Native American ChurchThe peyote exemption, quoted above in full.
14. Statute42 U.S.C. § 1996a — Traditional Indian religious use of peyoteThe 1994 congressional findings, including the 28-state / 22-state split.

Correction or withdrawal request