General situation
DMT (N,N-dimetyltryptamine, a tryptamine alkaloid generally found in ayahuasca) is prohibited in Brazil under drug control law n. 11.343/2006. Ayahuasca, however, is not specifically prohibited, and since 1987 has been explicitly authorized for ritual and religious use by infra-legal regulations promulgated by the National Council on Drug Policy (Conselho National de Políticas sobre Drogas, CONAD), an agency under the Ministry of Justice. In Brazil, the question of legality has not been decided by the courts as it has in many other countries, but rather internalized by the Brazilian government as an administrative law matter. Ritual and religious use by children and pregnant women has been authorized since 2004 (CONAD Res. nº. 05/04). In 2010, a detailed piece of regulation was promulgated establishing a “deontology of the use of ayahuasca” which defined unacceptable practices such as tourism, commercialization, unauthorized production, and therapeutic uses (CONAD Res. nº. 01/10). The definition of ritual or religious use has not yet been formally established.
The legal status of ayahuasca in Brazil could be interpreted as being in some respects precarious and uncertain, even despite its formal recognition by the state. Precarious because infra-legal regulations do not carry the weight of laws passed by Congress, remaining revocable by the issuing government agency at any time. Uncertain because it is unclear whether the 2010 deontology of use is purely advisory in nature or also enforceable by the federal police. Penalties for noncompliance are also uncertain – as of this time ayahuasca users and producers in Brazil are not being prosecuted. Overall, the legal situation as it currently stands is fairly stable. One exception pertains to the international exportation of ayahuasca, which has frequently led to the harassment of members of Brazilian ayahuasca religions by Brazilian law enforcement agencies. The 2010 regulation does not give guidance on the issue of international exportation, although it was specifically forbidden by a 2002 regulation (CONAD Res. nº 26/02).
Ayahuasca use in Brazil is relatively widespread, enjoying a rich history and diverse cultural present. Indigenous peoples in the Amazon continue in their traditional rituals, alongside sizable, highly organized Brazilian ayahuasca religions such as União do Vegetal and the various Santo Daime and Barquinha lineages, some of which date to as far back as the first half of the 20th century. Recent decades have witnessed the spread of ayahuasca to urban centers throughout Brazil and a proliferation of modalities of use including indigenous, neo-shamanic, therapeutic, and new-age applications. Brazilian religious organizations continue to be central to the internationalization of ayahuasca use as they work to open and maintain chapters in foreign jurisdictions.
International law
The Convention on Psychotropic Substances (1971) subjects several psychoactive compounds contained in plant species to international control. DMT (N,N-dimetyltryptamine, a tryptamine alkaloid contained in Psychotria viridis and other plants generally used in the preparation of ayahuasca) is a Schedule I controlled substance in the Convention. However, according to the International Narcotic Control Board (INCB) Report for 2010 (par. 284) ‘no plants are currently controlled under that Convention […]. Preparations (e.g. decoctions for oral use) made from plants containing those active ingredients are also not under international control’.
There is no general consensus among judges and law enforcement officials on whether ayahuasca is illegal because it contains DMT, or not. It is up to national governments to make the final decision in their own jurisdictions on whether to impose controls on these plants and preparations, including ayahuasca.
National drug legislation
In recognizing the legitimacy of ayahuasca use, the National Council on Drug Policy (Conselho National de Políticas sobre Drogas, CONAD) based its opinions on the Brazilian Constitution, specifically the freedoms of conscience, belief, and worship (art. 5, VI); and the guarantee of the state to protect expressions of culture, be they popular, indigenous, or afro-Brazilian (art. 215 §1).
Drug control law n. 11.343/2006 does not specifically name DMT as a prohibited substance, but rather leaves the compilation of this list to the National Health Monitoring Agency (Agência National de Vigilância Sanitária, ANVISA, formerly DIMED). Government involvement with ayahuasca began in 1985 when this agency placed Banisteriopis caapi on its banned substances list through decree n. 02/85 (apparently confusing the Banisteriopsis vine with the Psychotria leaf). User groups immediately petitioned the government for a reversal of this decision on freedom of religion grounds, and in the same year CONAD formed a Multidisciplinary Working Group to assess the issue (CONAD Res. nº 04/85). The vine was temporarily removed from the banned substances list through Resolution nº 06/86, and then permanently removed upon the publication of the Working Group’s final report, which for the first time recognized the ritual and religious use of ayahuasca as legitimate (Relatório Final, 1987). The question of legality was reopened in 2002 (CONAD Res. nº 26/02), at which time the legitimacy of religious use was reaffirmed and a further Working Group recommended. The next regulation was issued in 2004 (CONAD Res. nº. 05/04), reversing the 2002 regulation’s prohibition of ayahuasca use among minors, and commencing the new Multidisciplinary Working Group, the findings of which were published as a “deontology of the use of ayahuasca” by way of resolution in 2010 (CONAD Res. nº. 01/10).
The 2010 regulation establishing a “deontology of the use of ayahuasca” (CONAD Res. nº. 01/10) contains a number of new rules, some of which have raised controversy. Critics among some groups have observed that while this regulation may accommodate the philosophies and material circumstances of the several major organized religions that participated in its drafting, it inhibits the practice of other religious users throughout Brazil, including many indigenous communities. For example, the regulation prohibits activities oriented toward the attainment of profit though serving ayahuasca, requiring religious entities to raise funds through generalized membership contributions. These rules can place a financial burden upon itinerant shamans and small-scale organizations which often do not have regular membership and yet still must cope with regular operating expenses.
Furthermore, religious entities are tasked with cultivating and producing their own ayahuasca, but in the state of Acre, located within the Amazon, the state regulation that arose to control these activities has been criticized for being inefficient (CEMACT/CFE Res. nº004, 2010). Moreover, the entities that registered with the local government organ tasked with administering the regulation remain under constant threat and surveillance from enforcement agencies, while unregistered ones go unburdened.
Another controversial issue surrounds the healing potential of ayahuasca. Therapeutic uses are prohibited by the 2010 regulation, which are defined in that document as any “activity or process oriented towards healing, maintenance or development of health” (IV.VI.35). Healing rituals are permissible only within the context of acts of faith divorced from a cause-and-effect relationship between ayahuasca and a desired healing effect. Practices strictly therapeutic in nature are forbidden, unless their efficacy is “proven through scientific research carried out in research centers associated with academic institutions, following scientific methodologies” (IV.VI.38). It should be noted that in this regard the rules encourage more scientific research, a development which appears very promising.
In any case, despite the criticisms of the 2010 regulation, Brazil should be considered a pioneer in the regulation of ayahuasca. It is important to emphasize that the current state of affairs is the result of more then 25 years of sustained and good-faith negotiations between the government, researchers, and representatives of various Brazilian ayahuasca religions. It is the fruit of a legal process which in and of itself represents a great accomplishment.
Cases
Cases occasionally arise out of matters such as the exportation of ayahuasca out of Brazil or parental disagreement over a child’s participation in ayahuasca rituals, for example. The precedential value, however, of most judicial judgments in the Brazilian civil law legal system is small, as opposed to the weighty value such judgements can carry in common-law jurisdictions.
Relevant documents
Representatives of several major ayahuasca religions are working toward having ayahuasca recognized as “immaterial cultural heritage” of the Brazilian nation. This process was initiated through the Institute of National Historic and Artistic Heritage (Instituto do Patrimônio Históríco e Artístico National, IPHAN) in 2008, and in 2011 there commenced a National Inventory on Cultural References (Inventário Nacional de Referências Culturais, INCR). The cultural inventory will seek the cultural core common to all ayahuasca use in Brazil by producing a detailed cultural map. If successful, this process will help move the wider national discussion about ayahuasca away from the topic of drug policy toward one of culture and identity, a development which would stand to bolster the legal claims of religious users both in Brazil and worldwide.
Updated: March 2017
- Fax INCB 2001 Netherlands
- INCB letter ICEERS
- Hoasca 1971 Convention Legal Brief
- INCB Annual Report 2010
- INCB Annual Report 2012
- UN Declaration on the Rights of Indigenous Peoples
- TNI/ICEERS Ayahuasca Policy Report
- ICEERS Technical Report on Ayahuasca
- Plantaforma Ayahuasca Report Spain (Spanish)
- Declaration of Principles of the Religious Groups who consume the Tea Hoasca
Categories:
Countries
Tags:
ayahuasca
, map
, Brazil
, legality