The legal status of entheogenic plants varies by state, but federal law sits on top of every state map: psilocybin mushrooms, mescaline cacti, and ayahuasca are Schedule I controlled substances everywhere in the United States. Two states (Oregon and Colorado) have built legal frameworks for adult access or personal use of psilocybin and some related compounds. More than a dozen cities have told their police to deprioritize enforcement. Roughly 30 states independently ban salvia divinorum, and six ban kratom, though neither is federally scheduled. None of the state or local measures block federal prosecution, and none erase the federal consequences that follow a Schedule I substance around: firearms disqualification, workplace drug policies, custody exposure, and airport jurisdiction.
The Federal Baseline That Applies in Every State
The Controlled Substances Act classifies drugs by their chemical identity, not their botanical source. Psilocybin, psilocyn, mescaline, and DMT are all Schedule I, which means the federal government treats them as having no accepted medical use and high abuse potential.1Office of the Law Revision Counsel. 21 U.S.C. 812 – Schedules of Controlled Substances A psilocybin mushroom growing in soil is legally the same as extracted psilocybin in a vial. Growing one is manufacturing a controlled substance.
Simple possession of a Schedule I substance carries up to a year in federal prison and a minimum $1,000 fine on a first offense.2Office of the Law Revision Counsel. 21 U.S.C. 844 – Penalties for Simple Possession Distribution, manufacturing, or possession with intent to distribute an entheogenic plant in a quantity below the statute’s weight-triggered mandatory minimums exposes an individual to up to 20 years in prison and a fine of up to $1 million. A prior felony drug conviction doubles that ceiling. If someone dies or suffers serious bodily injury from the substance, a 20-year mandatory minimum applies regardless of quantity.3Office of the Law Revision Counsel. 21 U.S.C. 841 – Prohibited Acts A
Whether federal prosecutors actually pursue small personal cases in states that have legalized or decriminalized these plants is a matter of enforcement discretion. It is not legal immunity.
States With Legal or Decriminalized Access
Oregon
Oregon voters passed Measure 109 in 2020, creating the first state-regulated psilocybin program. It is codified in Chapter 475A of the Oregon Revised Statutes.4Oregon State Legislature. Oregon Revised Statutes Chapter 475A – Psilocybin Regulation It is not a retail model. An adult must complete a preparation session and then consume psilocybin at a licensed service center under a trained facilitator’s supervision. No product goes home. Service centers and facilitators are licensed by the Oregon Health Authority and pay annual fees, and licenses can be revoked for violations.5Oregon Health Authority. Psilocybin Facilitator License Application Guide Personal possession, growing, and selling of psilocybin outside the licensed system remain illegal in Oregon.
Colorado
Colorado voters approved Proposition 122, the Natural Medicine Health Act, in 2022. It decriminalizes personal possession, use, and home cultivation of five substances for adults 21 and older: psilocybin, psilocyn, DMT, ibogaine, and mescaline (peyote is excluded and remains reserved for the Native American Church).6Colorado Secretary of State. Proposition 122 – Natural Medicine Health Act The statute does not set a hard gram limit; “personal use” is defined to include amounts sufficient to share with other adults in counseling, spiritual guidance, or community healing settings, provided no money changes hands. Home cultivation must occur at a private residence and be secured from anyone under 21.
Colorado’s regulated access program, separate from the decriminalization piece, covers only psilocybin and psilocyn until June 1, 2026, when the Natural Medicine Advisory Board may recommend adding the other three substances.6Colorado Secretary of State. Proposition 122 – Natural Medicine Health Act
The Federal Overlay Neither State Can Erase
State police in Oregon and Colorado will not arrest someone following these programs. Federal agents retain full authority to enforce Schedule I prohibitions in both states. Public consumption, driving under the influence, and unlicensed sales remain criminal under state law as well. Complying with state rules is not a defense to a federal charge.
Cities That Have Deprioritized Enforcement
More than a dozen cities have passed resolutions making enforcement against entheogenic plants their lowest local police priority. These ordinances do not legalize anything. They redirect local resources.
Oakland acted first in 2019, followed by Santa Cruz. Since then Berkeley, San Francisco, Arcata, and Eureka have joined in California. In Massachusetts, Somerville, Cambridge, and Northampton have adopted deprioritization measures. Michigan cities include Ann Arbor, Detroit, and Hazel Park. Seattle passed Resolution 32021 declaring investigation and prosecution of entheogen-related activities among the city’s lowest law enforcement priorities.7Seattle City Council Legistar. Resolution 32021 – Entheogen-Related Activities
Washington, D.C. voters passed Initiative 81 in 2020 with roughly 76% support. It directs the Metropolitan Police Department to deprioritize non-commercial entheogen activities and calls on both the D.C. Attorney General and the U.S. Attorney for D.C. to stop prosecuting residents for non-commercial planting, cultivating, purchasing, possessing, and distributing these plants. Selling for profit remains a priority.
These ordinances carry practical weight for daily policing inside city limits. A county sheriff, state trooper, or federal agent operating in the same city is not bound by them. Cross the city line and full state law applies again.
Plants That Aren’t Federally Scheduled but May Be Illegal Where You Live
Salvia Divinorum
Salvia divinorum is not on any federal schedule. Roughly 30 states ban it anyway, many placing it in their own Schedule I. Penalties vary. Possession is a misdemeanor in some states with fines up to $2,500 and up to a year in jail; distribution is a felony in others with multi-year prison exposure.
Kratom
Kratom is unscheduled federally. Alabama, Arkansas, Indiana, Rhode Island, Vermont, and Wisconsin classify its active compounds (mitragynine and 7-hydroxymitragynine) as Schedule I, along with the District of Columbia. Several other states have adopted versions of the Kratom Consumer Protection Act, which regulates purity and labeling rather than banning the substance. The model legislation proposes penalties of up to $500 and 90 days in jail for non-compliant sellers.8Legislative Analysis and Public Policy Association. Regulation of Kratom in America
Amanita Muscaria
Amanita muscaria’s primary psychoactive compounds, muscimol and ibotenic acid, are not on any federal schedule. Only Louisiana has specifically restricted sales. Products marketed as dietary supplements have generally not gone through FDA safety review; absence of scheduling is not the same as regulatory oversight.
Analog and “Legal High” Statutes
Many state controlled substance codes are written broadly enough to reach any plant material intended to mimic the effects of a scheduled drug, even if that plant is not individually named. Penalties under these analog provisions often track the penalties for whatever scheduled substance the plant is said to mimic.
Spores and Ornamental Cacti: Where the Line Sits
Psilocybin mushroom spores do not contain psilocybin or psilocin, and the DEA has recognized that material not containing a controlled substance is not itself controlled under federal law. Germinate the spores and the resulting mushrooms produce psilocybin, at which point the material becomes Schedule I. California, Georgia, and Idaho ban the spores themselves regardless of chemical content. In most other states, purchase and possession of ungerminated spores is legal.
Mescaline-containing cacti such as San Pedro and Peruvian torch are sold at garden centers as ornamentals. They are not named alongside peyote on the federal schedule, and growing them for landscaping generally does not draw prosecution. Preparing the cactus for consumption or extracting mescaline is manufacturing a Schedule I substance. The distinction is intent, and a blender plus an extraction guide is what turns a garden plant into evidence.
Religious Exemptions
The Religious Freedom Restoration Act bars the federal government from substantially burdening a person’s religious exercise unless it shows a compelling interest achieved by the least restrictive means.9Office of the Law Revision Counsel. 42 U.S.C. 2000bb – Congressional Findings and Declaration of Purposes Two narrow exemptions have followed.
Peyote and the Native American Church
A federal regulation states that peyote’s Schedule I listing does not apply to its nondrug use in bona fide Native American Church ceremonies, and Church members using peyote in that context are exempt from DEA registration.10eCFR. 21 CFR 1307.31 – Native American Church Anyone who manufactures or distributes peyote to the Church still needs annual DEA registration.
Ayahuasca After O Centro
In Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), the Supreme Court held that the federal government had failed to show a compelling interest in blocking a small religious group’s sacramental use of a DMT-containing tea, noting that the long-standing peyote exemption undercut any argument that the Controlled Substances Act tolerates no exceptions.11Justia U.S. Supreme Court. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)
Petitioning the DEA
The DEA publishes guidance for religious organizations seeking their own exemptions. A petition goes in writing to the Diversion Control Division, signed under penalty of perjury, and must document the religion’s history, beliefs, and organizational structure; the specific practices involving a controlled substance; the substance sought; and the anticipated quantities, storage, and locations of use.12Drug Enforcement Administration. Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act If the DEA requests more information and the petitioner doesn’t respond within 60 days, the petition is deemed withdrawn. No group may use the substance until the petition is granted and DEA registration is issued. Individual spiritual claims outside an organized religious body generally do not clear this bar.
Consequences State Law Cannot Waive
Firearms
Federal law prohibits any “unlawful user of or addicted to any controlled substance” from possessing firearms or ammunition.13Office of the Law Revision Counsel. 18 U.S.C. 922 – Unlawful Acts “Controlled substance” is defined by federal law, not state law. A regular psilocybin, DMT, or mescaline user in Oregon or Colorado is an unlawful user for federal firearms purposes and cannot lawfully buy or possess a gun. The ATF has told federal firearms licensees explicitly that state legalization provides no exemption.14Bureau of Alcohol, Tobacco, Firearms and Explosives. Open Letter to All Federal Firearms Licensees Lying about controlled substance use on ATF Form 4473 is itself a felony.
Employment
The Drug-Free Workplace Act requires organizations holding federal contracts above a threshold, or any federal grant, to maintain a drug-free workplace policy prohibiting controlled substance use.15Office of the Law Revision Counsel. 41 U.S.C. 8102 – Drug-Free Workplace Requirements for Federal Contractors Employees working on federal contracts convicted of a drug violation must notify their employer within five calendar days.16Substance Abuse and Mental Health Services Administration. Federal Contractors and Grantees Outside federal contracting, private employers in most states can fire employees for a positive drug test even when the substance is legal under state law. No state currently offers explicit statutory employment protection for off-duty entheogen use. Medical marijuana protections in some states do not extend to psilocybin or other entheogens.
Air Travel
TSA screening looks for threats to aviation safety, not drugs specifically. When officers find a controlled substance during screening, they refer the matter to law enforcement.17Transportation Security Administration. What Can I Bring – Medical Marijuana Airports sit under federal jurisdiction. Carrying psilocybin mushrooms through security, even between two decriminalized cities, means bringing a Schedule I substance into a federally controlled space.
Child Custody
Use of Schedule I substances can be raised in family court as evidence of parental unfitness, even in states where those substances are legal for adults. No state has enacted a law explicitly shielding parents from neglect allegations based solely on legal entheogen use. A 2023 New York bill proposed such protection but did not pass. Until that gap closes, a co-parent, caseworker, or judge can raise the fact of use in a custody dispute.
The pattern is consistent across every one of these consequences. State legalization creates a narrow zone of protection against state criminal charges. Federal law continues to impose penalties and disabilities that state legislators cannot waive.