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Myths & realities of ayahuasca legality (II)

16.09.2019

1. If there were a police raid in an ayahuasca session, only the leaders would get in trouble.

Reality: There have been police raids of ayahuasca sessions where police officers arrested both leaders and participants. There have also been reports of police investigations into the computers of leaders that led to arrests of session participants.

2. A group filled in agricultural papers to import ayahuasca, or paid taxes on the importation, therefore they are legal.

Reality: Different government agencies might act independently and people might have problems later down the road.

3. Being a traditional healer is legal in South America.

Reality: There are also many different aspects of this statement to consider, such as the regulation of the profession and its integration into the public medical system. These are not clear and uniform in all South American countries.

4. Traditional healers from South American countries where ayahuasca is legal can legally import and administer ayahuasca in the United States or Europe.

Reality: False. Some indigenous healers entering the United States have been arrested and had their ayahuasca seized by customs and the individuals subsequently deported. Whereas it might be easier to argue for liberty if you are indigenous, it is not guaranteed. To the drug control authorities you would likely still be seen as an unlicensed importer of a controlled substance.

5. Ayahuasca is legal in the USA because the UDV went all the way to the Supreme Court and got its use of ayahuasca approved.

Reality: False. The Supreme Court upheld a preliminary injunction allowing the UDV to import its sacrament, but this permission is valid only for the UDV. (Some local branches of Santo Daime have had their own independent legal process, see below). Today the UDV’s use of its sacrament is licensed, under very specific conditions, by the DEA.

6. The Santo Daime Church is legal in the United States as well.

Reality: There was a decision by a Federal Judge in the State of Oregon that the Federal Government could not prosecute members of three churches in that state for their ritual use of the daime. That decision only applies to those three churches. Recently, a Santo Daime group in Los Angeles applied directly to the DEA for an accommodation to operate and was approved as well. Other Santo Daime churches in the United States did not receive any legal protection (or exemption from prosecution) as a result of these decisions.

7. The Santo Daime and UDV churches are recognized by the State as legitimate religious association; therefore, they may legally use ayahuasca.

Reality: False. Legislation regulating religion and religious practices is independent of drug laws and law enforcement.

8. The Native American Church’s exemption for peyote applies to ayahuasca.

Reality: False. Peyote and ayahuasca are treated differently. The Native American church does not have an exemption for ayahuasca.

9. Ayahuasca Healings Retreats is the first legal ayahuasca church in the US.

Reality: False. This group has no legal protections, and the UDV and Santo Daime (in certain states) both precede them in being the first legal ayahuasca church in the US.

10. ONAC and James Mooney won a legal case; therefore, their church is legal.

Reality: False. Winning a legal case is not the same as being legal (see above). ONAC and James Mooney won a legal case for the use of peyote in the state of Utah, not for ayahuasca, in that state or any other. Their peyote exemption in Utah does not extend to ayahuasca or any other sacramental ethnobotanical listed on their membership cards. Membership to ONAC has already failed as a defense for cannabis possession a number of times.

11. Ayahuasca is legal because the INCB issued a letter saying it is not under international control.

Reality: It is true that the INCB issued a letter saying the plant ingredients of ayahuasca are not controlled under the 1971 Convention on Psychotropic Substances and therefore the ayahuasca prepared from them is not controlled. However in a court case the judge still does the final interpretation of the evidence and past cases have occurred in which the INCB’s interpretation was not accepted. The Supreme Courts of both the United States and the Netherlands rejected it. Instead, both said ayahuasca is a “preparation” containing DMT and therefore controlled under the Convention. However, in other cases in Chile, Spain or Switzerland, the interpretation of the INCB was accepted leading to various acquittals.

12. Ayahuasca is legal because it has really little DMT.

Reality: The legal situation of Ayahuasca is more complex than its simple comparison to DMT. It is a fact that ayahuasca and pure, extracted DMT are two different things from juridical, cultural and pharmacological/psychological point of view. Pure, extracted DMT is only active if smoked or injected and is linked to very different patterns of use. However, the fact that DMT is illegal under the 1971 Convention, and ayahuasca naturally contains DMT makes its legal status unclear and can result in legal prosecution based on the understanding of law enforcement that ayahuasca is illegal because it is a DMT preparation. While some countries may consider the percentage of DMT in a preparation relevant in making a law enforcement decision, in many countries how high or low the amount is would not matter at all.

13. Since the ADF, supported by the International Community has your back covered, you can forget about the law and just do your sessions.

Reality: There has been a huge increase in the cases involving ayahuasca, so knowing that there is an increased legal uncertainty, it is crucial to be well informed about legal status and not rely on naiveté. Also, the ADF has selection criteria that have to do with responsibility and ethics of the practitioner, since we want to invest community resources in an efficient way to move towards sensible policy and legal protection. One needs to be aware of one’s responsibilities and be as well informed as possible about legal status, which the ADF intends to facilitate through education and information.

14. Ayahuasca use is legal in Spain because Santo Daime and other cases were victorious there.

Reality: False. Winning a criminal court case doesn’t mean it makes ayahuasca legally protected nationally. None of the estimated 44 legal cases in Spain have made it up to the Supreme Court, so no legal precedent is set nationally. Also, it is important to take into account that personal use of all drugs is decriminalized in Spain, so a significant number won because the ayahuasca was destined to personal use. In some jurisdictions, such as Catalonia and Alicante the court outcomes have been most favorable recognizing in some cases ayahuasca is not illegal in Spain following the INCB’s interpretation, but again this doesn’t provide legal protection of ayahuasca importation and practices. It is important to note that even though all except for one case (where the defendant declared guilty out of fear to make a deal with the prosecutor), the financial and emotional distress involved in going through criminal prosecution is vast.

15. The organization Ayahuasca International claims that ayahuasca is legal in Spain and in all countries guided by the international drug conventions, except countries with specific legislation such as the UK and France. Official workshops are advertised all over Europe.

Reality: This is misleading. According to the International Narcotic Control Board (INCB) Report for 2010 (par. 284) ‘no plants are currently controlled under the 1971 Convention […]. Preparations (e.g. decoctions for oral use) made from plants containing those active ingredients are also not under international control’. Nevertheless, countries are free to adopt stricter controls on the state level. There is no general consensus between 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. So, in all countries workshops are offered there is no legal certainty and risk for law enforcement to intervene. According to ADF experience in legal cases and advocacy efforts, the concept of lucrative business or messianic promotion of this type of plants, accompanied by extensive online marketing, as several new groups in different parts of the world are doing, is highly problematic in moving towards sensible policy on behalf of the authorities and law enforcement.

Categories: Ayahuasca , ADF