The Magic Roundabout

The Magic Roundabout…
How to deal with psylocybe mushrooms

A briefing from Transform Drug Policy Foundation

Summary

This briefing looks at the problems with the current law regulating the production and sale of fresh psylocybe or ‘magic' mushrooms and explores the options for the future. It argues that pursuing a clampdown would be counterproductive and that the best option, from a public health and criminal justice perspective, is the introduction of some appropriate legal framework for licensing the production and sale of fresh mushrooms.

UPDATED 22.12.04 - the Drugs Bill 2005 proposes to make fresh mushrooms a Class A drug. This briefing has been updated.

UPDATED 14.01.05
Links added
Transform has produced a detailed reposnse to the Drugs Bill including Clause 21 that seeks to make fresh psylocybe mushrooms a Class A drug: Transform response to the Bill

The Current Situation
Health Considerations
Ways Forward:
Option 1 - 'get tough' / legal clampdown
Option 2 – reforms to enforcement policy and legislation
Short term: specify clearly what may and may not be sold
Medium term: A rethink of the classification system for psychedelics
Medium term: License vendors of fresh psylocybe mushrooms
Longer term: Moves towards full legalisation and regulation of drugs
Discussion
References
Appendix:Can we learn from the Dutch?
Links

The Current Situation

The past two years has witnessed the appearance of fresh ‘magic' mushrooms - containing the active substances psilocybin and psilocin (various spellings) – on sale in an estimated 300 shops and market stalls across the UK (1), as well as mail order sales from numerous websites. Although the law, set out in the Misuse of Drugs Act 1971 (MDA), has not changed, traders have latched onto the specific wording in the Act which classifies the active ingredients in the mushrooms (psilocybin and psilocin) as Class A drugs, but not the fresh mushrooms themselves.

A widely circulated letter from Ian Breadmore (Home Office drug licensing section, 17 February 2003) stated that ‘it is not illegal sell or give away a freshly picked mushroom provided that it has not been prepared in any way' and has been taken by vendors as official permission for their activities (2). In July 2004 Customs and Excise confirmed that psylocybe mushrooms were taxable at 17.5% VAT because they are not a food but a drug (1).

The psylocybe mushrooms now widely on sale are rarely, if ever, the varieties that grow wild in the UK (most commonly the liberty cap) but are a number of varieties from around the world that are larger and easier to cultivate. Until recently most were grown in Holland and imported, but increasingly, as the market has expanded, they are being cultivated in the UK.

At present fresh psylocybe mushroom sales are effectively unregulated. Sales are not covered by any kind of legally binding regulatory framework, other than various informal and patchily applied voluntary codes devised by vendors. This lack of regulation and licensing means that:

• There are no (or voluntary only) controls on age of purchaser.

• Anyone can set up as vendor, with no license, qualifications or registration required.

• There are no quality controls (or voluntary only) over the mushrooms sold, including those familiar to other foods such as sell by / use by dates.

• There is no requirement for information to be provided on the strength (psilocybin/psilocin content) relevant to dosage.

• There is no requirement for health and safety information to be provided with the mushrooms that would include details of dosage, effects, contra-indications, risks, harm reduction, where to access help and advice services and so on.

Psylocybe mushrooms: Health considerations

There appears to be broad agreement between various medical and drug agencies that the health dangers of fresh psylocybe mushrooms are low relative to most other commonly used recreational drugs, legal or otherwise. As with any drug health risks do exist - but are limited by psilocybin / psilocin's low toxicity (there are no recorded fatalities), non-addictive nature (they “ are not addictive in any way ” according to the Government's ‘TalktoFrank' website (3) ), and the rapid development of tolerance, negating most effects within a few days continuous use.

Recorded problems can include precipitation of existing mental health problems, unpleasant experiences (paranoia, frightening visions), and occasionally persisting anxiety and/or psychological disturbances after the effects of the drug have worn off These occur most frequently in people with pre-existing mental or psychological problems, or following heavy use/ high doses).

Most drug information sources, however, agree with the Government site ‘TalktoFrank' that “ The biggest danger with taking any magic mushrooms is making sure you're taking the right thing - there are hundreds of varieties of out there and some of them are highly poisonous.” (3). There are also potential dangers (although unlikely to be mortal) from eating un-fresh mushrooms that have gone bad.

There was a useful review of risks associated with psylocybe mushroom undertaken by the Dutch Coordination Centre for the Assessment and Monitoring of new drugs, (CAM 2000) which is available for download as a pdf here.

The widely described low risk potential calls into question the categorisation of prepared psylocybe mushrooms and psilocybin / psilocin as Class A drugs. This classification currently places mushrooms alongside the conspicuously more toxic and addictive drugs such as heroin and cocaine, and in the class above amphetamines (Class B). The possibilities for reclassification are discussed below.

Ways forward:

Option 1 – ‘get tough' / legal clampdown

The ‘get tough' option would involve finding a solid legal route for criminalising the sale of fresh psylocybe mushrooms that would then allow police to arrest and prosecute vendors and/or close down shops and stalls openly selling them. This is the route that will be persued if the new Drugs Bill 2005 is passed by parliament in the coming year. The Bill includes a proposed ammendment to the MDA 1971 that would reclassify fresh psylocybe mushrooms as a Class A drug. For the text of this legislation, explanatory notes and the Home Office cost benefit analysis please see Transform Latest News. (This briefing will be fully updated in response to these ongoing developments in 2005). This option is highly problematic for legal and practical reasons:

• There will always have to be some legal caveat to protect the millions of landowners on whose land psylocybe mushrooms grow naturally. The problematic question then inevitably emerges: at what point does a fresh mushroom growing in a field, park or garden become a class A drug - the possession of which ‘ can get you up to seven years in jail and an unlimited fine' and the supply of which: ‘ can get you life and an unlimited fine' (TalktoFrank). The Home Office have informed Transform that there will be statutory instruments enacted to address this issue after the Drugs Bill 2005 has been enacted. Until that point we are unable to comment on how this may or may not operate in practice.

• There are currently one or more test prosecutions of psylocybe mushroom vendors underway that are attempting to clarify some of these issues. (for some of the recent developments see news story The Guardian 15.12.04). The current debate seems to come down to the definition of the words ‘prepared for use' in the MDA, with legal debate concerning whether actions such as freezing, refrigerating, drying, and ‘packaging for sale' constitute a form of preparation and production. Case law suggests that this is a potential quagmire: individuals with ‘naturally' dried psylocybe mushrooms have been acquitted (and had their mushrooms returned by the police), whilst others who have frozen psylocybe mushrooms have been successfully prosecuted.

• If refrigeration or packaging of the mushrooms is deemed to constitute ‘prepared for use' they will simply be sold un-refrigerated or unpackaged, inadvertently increasingly risks for consumers.

• If mushrooms cannot be sold ‘for consumption' they will be sold for some other spurious purpose, preventing health and safety information being provided with the sale, again increasing the risk to consumers.

• Where there is demand, and legal confusion exists, vendors will doubtless seek out ways to supply psylocybe mushrooms, especially whilst profit margins of ‘ several hundred percent' remain (1) . This will likely result in a lengthy, expensive and undignified legal tango between enforcement agencies and vendors.

• Prosecuting on the basis of whether a mushroom has been in a fridge or not, or whether it was dried on a window sill or under a grill, or any such narrow and trivial distinction (the inevitably outcome of this line of thinking), suggests that enforcement is arbitrary, irrational, and ineffective. It is something that police and prosecution services are unlikely to have much enthusiasm for.

• Home psylocybe mushroom growing kits are also now widely available, cheap, easy to use and growing in popularity. No existing legislation can prevent the sale of these kits and, unlike the cannabis growing kits and seeds that are also widely available, the cultivation of mushrooms is not prohibited. Clamping down on fresh mushroom sales would certainly lead to increased use of the growing kits, as well as the creation of an illegal market (that does not currently exist) at the expense of legitimate, regulated and potentially taxed trade.

• Clamping down on magic mushrooms would, on principle, necessitate clamping down on other plants that contain Class A substances. These include Peyote and San Pedro cacti (containing mescaline and widely available in garden centres), and fresh/dried poppies and poppy seeds from which opium can easily be extracted (available in garden centres, craft shops and even IKEA).

• There are a number of plants containing psychoactive substances that are freely on sale in the UK but not covered by the Misuse of Drugs Act or any other legislation. These include the fly-agaric mushroom that contains the powerful hallucinogen muscarin , a substance that by all accounts is far more toxic and dangerous than psilocybin and has been associated with fatalities. Fresh and processed Fly-agaric based products, including concentrated extracts for smoking, are already for sale in some shops. There is a real danger of creating a perverse situation whereby harshly enforcing the law on psylocybe mushrooms would lead to increasing use of the significantly more dangerous (but legal) fly-agaric mushrooms.

• Similarly, the Salvia-Divinorum plant, the leaves of which are smoked, contains another powerful hallucinogen Salvonorin . Little is known about its potential harms of Salvonorin use, but it is widely available in ‘head shops' and online in a variety of preparations. Other drug-plants in this unclassified legal category include Khat (a schedule 1 drug in the USA), and a number of more esoteric plants such as Datura, Ayuasca and Ibogaine, more commonly used for traditional ceremonial or religious reasons. Such inconsistencies and anomalies undermine the argument for clamping down on psylocybe mushrooms and are likely to result in further legal challenges.

If the goal is either to have reasonable, consistent and effective laws, or to prevent the consumption of psylocybe mushrooms, a clampdown on vendors would appear to be a no win situation for both police and Home Office.

Option 2 – Reforms to enforcement policy and legislation

There are a number of alternative policy options for the short, medium and long-term, that Transform would recommend. These options, detailed below, offer significantly improved outcomes on public health, criminal justice and economic indicators to either the status quo or pursuing a police clampdown.

Short term:

• Specify clearly what may and may not be sold

Since there is no prospect that mushroom based preparations containing psilocybin or psilocin will be removed from the MDA and licensed, there needs to be some clarification over what constitutes ‘prepared for use' so that the police, vendors and public know where they stand.

Given that fresh ‘unprepared' psylocybe mushrooms and growing kits can be sold legally, and that the fresh mushrooms can also be possessed, consumed and shared between individuals legally, it seems nonsensical, and a little churlish, to waste court time pursuing the legal ramifications of whether and how the fresh mushrooms are dried, refrigerated, or packaged.

A sensible compromise is to specify clearly the nature of preparations that are prohibited. This might reasonably include specific preparations, such as drinks, pills, powders, tinctures, cooked or prepared foods, and pharmaceutical grade extractions - that involve actual mechanical processing or combination with other consumables. The inescapable lack of logic in trying to make such delineation remains, given that products on either side of the line will have precisely the same psychoactive effect. However, it will be much easier from an enforcement standpoint to make a distinction between a fresh mushroom and a mushroom pill/drink/cookie than to quibble over how storage, packaging or partial drying of the fresh mushroom may (or may not) have turned it into a class A drug.

The Drugs Bill 2005 proposes to address this thorny problem by making fresh mushrooms a Class A drug.

Medium Term:

• A rethink of the classification system for psychedelics

As has been noted above, there is a strong case to be made that psilocybin and psilocin are not appropriately classified under the MDA. The legal conundrum now faced by the Home Office is not helped by the yawning gulf between the total legality of fresh mushrooms and the Class A status of the ‘prepared' variations. The reclassification of psilocybin and psilocin to class B or C would go some way to reducing this incongruity, and would not be in conflict with current medical knowledge regarding health risks (noted above). Such a reclassification would allow police and authorities to de-prioritise psylocybe mushroom related offences, which, given the lack of criminal, public order, and health problems associated with their use would probably be welcomed.

The recent reclassification of cannabis offers a precedent, having brought the legal penalties for possession more in line with the associated dangers of the drug, and also brought the classification into line with evolving police enforcement priorities.

The problem with such a reclassification for psilocybin / psilocin is that it is (currently) the active ingredients that are classified under the MDA, not the carrier plants. Consequently all preparations including these active ingredients would effectively be reclassified, theoretically including the pure pharmaceutical grade form. It should be noted that there is currently no demand for, or supply of, pure pharmaceutical grade psilocybin in the UK, and given the ease of consuming the fresh mushrooms, it is unlikely there ever will be. Furthermore the process of turning fresh psylocybe mushrooms into pure psilocybin is lengthy and technically difficult, requiring multiple solvent based titrations, and is far beyond the capacity of all but a few pharmaceutical laboratories.

However, such a refined product is not dissimilar in potency to LSD or refined mescaline, both of which are also Class A drugs. Consequently, to reclassify psilocybin would potentially create contradictions with the way other psychedelics are classified. Whilst there is a strongly arguable case that none of these psychedelics should be class A, Transform appreciate that reclassification of mescaline, and (in particular) LSD, may not be viable in current political climate.

Re-examining the classification of psychedelics is not a new suggestion. The Police Foundation report recommended that LSD be reclassified into Class B five years ago, based on feedback from members of the Royal College of Psychiatrists' Faculty of Substance Misuse. The inquiry did not specifically consider psylocybe mushrooms or related preparations, but it seems reasonable to assume they would have recommended reclassification, based on the classification criteria they established. The report notes that:

“We believe that the present classification of drugs in the MDA should be reviewed to take account of modern developments in medical, scientific and sociological knowledge. The main criterion should continue to be that of dangerousness but the criteria should be made clear.” (Chapter 3, paragraph 8)

In 2002 the Home Affairs Select Committee report into the UK drug laws from the noted the following evidence:

"The current system of classification lacks credibility as it is not based on the relative harm caused or dangerousness of use" (Turning Point)

"There is a misalignment in the relative harms of certain drugs and their classification" (DrugScope).

"The present tough penalties on the use of ecstasy, LSD and cocaine are inappropriate and counter-productive and should be reduced" (Release).
(Paragraph 85)

The committee concluding that:

“The time has come to reconsider the existing classifications for the less harmful drugs”
(Paragraph 88)

However, like the Police Foundation Inquiry, the Home Affairs select Committee did not specifically address the question of psylocybe mushrooms (in any form), or indeed LSD. At the time (2000-1) the issue of psylocybe mushrooms was very much below the drug policy radar, with the new ‘legal' markets having only appeared in the last two years.

Despite the potential pitfalls, reclassification of psilocybin/psilocin would have real practical benefits and it is a suggestion that the Advisory Council should be asked to respond to given their role to advise the Home Secretary on precisely such issues. Furthermore, reclassification can take place without recourse to Parliament and could happen quickly and easily if the Home Secretary was persuaded of the case. Transform understand that the Advisory Council are considering a wider review of drug classifications, and would welcome any updates on this review and any opportunities to feed into the review process.

• License vendors of fresh psylocybe mushrooms

It seems clear that whilst fresh psylocybe mushrooms remain legal and are being sold and consumed, that there should be some form of licensing and control over both the vendors and the actual mushrooms. This can be done within the law, as suggested below, and whilst perhaps not being an adequate long term solution it would be preferable to either the current scenario of legal sales with no licensing whatsoever, or the expensive, messy and likely futile legal option of pursuing a ‘ get tough' approach.

Some form of licensing would ensure, at the very least, the level of quality and freshness that consumers would reasonably expect when purchasing commercially sold (non psychoactive) mushrooms for consumption as food. Classifying fresh mushrooms as a ‘food' and bringing them under the control of existing food legislation and standards agencies could achieve this. This is what happened in Holland in 2002 (see appendix).

Ideally there should also be information included in or on the packaging, or at point of sale, that gives an indication of strength and dosage, as well as the kind of health and safety information familiar to consumers of over the counter drugs.

For the vendors there is an urgent need for some form of licensing to ensure adherence to basic regulations, in the same way tobacconists, publicans or pharmacists are licensed to different degrees. This would mean that:

• Basic rules about age and intoxication of purchaser could be enforced

• Quantities sold could be limited

• Advertising and shop front promotions could be controlled

• Vendors would be obliged to provide health and safety information

Local Councils would seem the natural place to oversee licences and enforce licensing conditions. License violations could be dealt with, as with alcohol and tobacco vendors, with a hierarchy of penalties including fines, withdrawal of license, and prosecution.

The recent Dutch experience provides a useful precedent (see appendix) and Transform recommend that the Home Office examine how they have dealt with this situation pragmatically and without attracting the scorn of the UN drug agencies . Seeing no easy way past the quandary of how to licence sales of a nominally illegal drug the Dutch have recently opted to ignore (finesse-around) the obvious contradictions. The Dutch Ministry of Justice only now allows magic mushroom sales only if they are not for consumption, but simultaneously licenses them as a food, whilst the Ministry of Health insists that they are sold with a pamphlet of health related information to consumers. Such contradictions are, to a greater or lesser extent, inevitable whilst prohibition is in place and the fresh/legal - prepared/illegal distinction remains.

There is a precedent for having different preparations of the same drug dealt with differently under curent policy: The Misuse of Drugs Act classifies amphetamines as Class B, unless they prepared for injection when they become Class A.

Longer term

• Moves towards full legalisation and regulation of drugs

The glaring inconsistencies in current policy with regards psylocybe mushrooms highlight the ill thought out nature of existing laws that attempt to control the use of certain psychoactive plants.

Transform's position is clear. We believe that, in the long term, the only just and effective option is to legalise and regulate all drugs in a way that reduces the harm they cause to users and reduces the negative social impacts of unregulated illegal drug markets. For more information and discussion please see the new Transform report ‘After the War on Drugs, Options for Control' available for download (pdf format) from www.tdpf.org.uk . For printed copies please contact Transform on 0117941 5810.

Discussion

The curious legal status of psylocybe mushrooms offers a unique opportunity for the Government to experiment with legal licensing models within a small enclave of UK drug culture that is not associated with any of the public health problems, crime, or antisocial behaviour of many other drugs.

Fresh psylocybe mushrooms offer a reasonably controlled, low dosage form of the active drug, in some respects comparable with coca leaf chewing (low dose cocaine), or poppy tea (low dose opium) - neither of which cause significant health or social harms where consumed. In this context it could be argued that licensing sales of psylocybe mushrooms is a form of harm reduction, minimising risks for users, keeping individuals away from stronger preparations, and potentially diverting individuals from more dangerous drugs, such as ecstasy or fly-agaric mushrooms. Glastonbury festival this year, where psylocybe mushrooms were freely available for the first time was notable for the lower numbers of ecstasy users, dealers and drug related medical emergencies.

Unlike the reclassification of cannabis – which created an enormous media brouhaha – there is (so far) little media interest in psylocybe mushrooms, which have yet to make much of an impact on popular culture and have not been associated with any high profile fatalities. A big police clampdown could backfire by providing free publicity, mirroring the explosion of ecstasy use that followed the clampdown in the late 1980's.

In the current environment the negative political costs of a move to controlled licensing would be minimal, and a sensible licensing system would be less open to criticism than the current muddle, being defensible on the simple pragmatic grounds outlined in this briefing.

References

‘Psychedelic mushrooms - Magic limbo', The Economist, p.45 18 th September 2004
Ian Breadmore Letter is online at www.magic-mushrooms.net
See www.talktofrank.com/azofdrugs
See chapter 3 of ‘ Drugs and the Law' the Report of the Independent Inquiry into the Misuse of Drugs Act 1971. It can be read here: http://www.druglibrary.org/schaffer/Library/studies/runciman/pf3.htm

Appendix

Can we learn from the Dutch?

Psilocybin mushrooms have been sold in Dutch "smartshops" since the mid 1990s. In 1997, a police raid looking for cannabis cultivation found a large psilocybin mushroom growing operation and the growers and smart shop owners involved with the production and sale of the mushrooms were charged with violating the drugs law which cover psilocybin. After five years of court battles, the highest court of the Netherlands (Hoge Raad) ruled in November 2002, that fresh magic mushrooms could not be considered "containers" of the controlled chemicals psilocybin or psilocin unless they are prepared for ingestion by drying. Under this decision the possession and sale of fresh mushrooms are legal as long as they are not for the explicit intent of ingesting them.

The mushrooms now occupy a strange legal position, similar to that in the UK, because the active substances in them are listed as "hard drugs", but they have also been officially allowed as saleable products (with certain restrictions).

The significant difference is that the mushrooms in Holland are now monitored by the Keuringsdienst van Waren (KvW : 'Inspection Agency for Goods', the Dutch equivalent of the UK Food Standards Agency or the US Food and Drug Administration). The KvW is licensed and obliged to monitor the quality of 'goods'. In daily practice, the KvW concentrates on consumable goods that can impact public health. The recent report from the KvW (translated) states that:

“Paddo's (hallucinogenic mushrooms) belong to the oldest known mind affecting drugs. The trade (via smartshops) and the use of mind expanding mushrooms has been on the rise in the Netherlands since 1995. Recently however the consumption of paddo's seems to be on the decline.

The active (mind expanding) substances in paddo's are psilocine and psilocybine. Both substances are at List 1 of the Opium law and are so considered to be hard drugs. The cultivation of psilocybine and psilocine containing mushrooms with the intention to prepare them for consumption, to put them into foods and to sell them (etcetera) is a punishable act in the sense of paragraph 10a of the Opium Law and is therefore illegal. However, the simple trade of fresh paddo's and substrate filled cultivation trays is not illegal. These activities are covered by the Warenwet (law of goods), which states that the KvW has to monitor 'goods'.”

”In a survey of the risks which these paddo's cause to the public health, the Minister of Public Health installed the commission Cordination Point Assessment and Monitoring new Drugs (CAM). The CAM concluded that the risks of psilocybin mushrooms are low. Acute reactions are no more severe than having a scary experience. No chronic toxicity was found. And no signs of physical or mental addiction was found.”

The Dutch Ministry of Health has also published a flyer about the effects of psilocybin and of magic mushroom consumption, which is included with the purchase at smartshops, ‘ just in case' a customer intends to ingest them. Officially, magic mushroom sales must include a label stating that it is illegal to sell the mushrooms for the purpose of ingestion. This strange interplay of regulations results in a smartshop owners not being allowed to sell the mushrooms for consumption by the Ministry of Justice, but strongly encouraged to include details about consuming them by the Ministry of Health.

Updated: December 2004

This is an edited version of a briefing submitted to the Home Office
Photo copyright www.erowid.org

Links to further Info

For detailed background information and links on psilocybe mushrooms visit the erowid mushroom page

Magic Mushroom Consumer Group
www.magicmushroomconsumers.org

Protecting the rights of Magic Mushroom consumers in the UK. Offers a variety of resources, links and information. Actively involved in campaigning against moves to fresh make magic mushrooms a Class A drug

(Note: Transform is not responsible for linked information)