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Description of the
U.S. Legal Status of Non-Peyote Mescaline-Containing Cacti
in 2003-2004
by Erowid
v1.2 - Jan, 2004
First, it is important to state that the legal status of mescaline-containing cacti is complex because the law is not clear. US Controlled Substance laws are unclear, confusing, and not based on any clear, rational criteria. The following is an attempt to draw out some of the issues we see as relevant to the legal status of these plants.

San Pedro and the other columnar mescaline-containing cacti are not specifically scheduled, but they contain the controlled substance mescaline. Mescaline is a Schedule I substance in the U.S. The wording of the Controlled Substance Act is that "any material, compound, mixture, or preparation, which contains any quantity of [a Schedule I hallucinogenic substance]", is also a Schedule I substance. In practice, there are many common plants which contain measurable quantities of Schedule I substances like mescaline and DMT. While peyote (Lophophora williamsii) is specifically named in the law as a Schedule I substance, columnar cacti, like the San Pedro (T. pachanoi) and Peruvian Torch (T. peruvianus), are not.

Since we are unaware of any convictions involving whole San Pedro and the case law contains no cases on point, it makes their legal status unclear. It is possible for a prosecutor to argue that it is illegal to possess or distribute San Pedro with the knowledge that it contains a controlled substance. This is based on somewhat analogous cases dealing with unscheduled plants like khat and mushrooms, but there aren't any exactly parallel cases. The main differences are that cacti are most often possessed as ornamental plants not for ingestion (unlike existing cases involving khat and mushrooms), they are widely available from legitimate retail outlets, and they are grown openly in arboretums and in gardens. In contrast, khat is listed in a Federal Register entry where the DEA says it considers khat a controlled substance container.

Please Note: The fact that there have been few, if any, criminal convictions for the possession of San Pedro does not mean one is immune from police arrest for the sale or possession of these cacti.

We do know of one case where a person was prosecuted, and eventually plead guilty, for purchasing and distributing dried, powdered mescaline-containing Trichocereus cactus under a Illinois state law. Because the case did not go to trial and there was no apellate-level decision, it is hard to extrapolate from this one prosecution. It stands as an important reminder that selling prepared mescaline-containing cacti products skirts the edge of the law and could easily be considered "manufacturing" or "distributing" a controlled substance.

Practically speaking it is very unlikely that someone would be convicted for simple possession of San Pedro. There is a much higher risk to those who sell the plants with information about their psychoactive properties. Prosecutors are more likely to target sellers who advertise their cactus for "getting high". Preparing San Pedro for ingestion also makes it more likely that the plant would be considered a "material, compound, mixture, or preparation" containing a Schedule I substance. There is little question under federal law about the legality of possessing or selling the cactus with the intent to use it as a source for mescaline.

These columnar mescaline-containing cacti are readily available from plant vendors across the country. They can be purchased at mega-chains such as Target and Home Depot and are cultivated on government properties and in arboretums. Because of this, simple possession with no intent to ingest is de facto legal. Cutting a propagable section (over 5 inches or 12 cm) off of a live cactus would generally not count as preparation. However, slices, blended or boiled cactus material, pulp, extraction equipment, or any process of extraction could be considered preparation and immediately turns the plant material into a "container" for a Schedule I substance.

The only case we know of is that of M. Coblenz who was charged, under California law, for selling San Pedro. His lawyer defended the case by arguing selective prosecution. He was not convicted, but we have no details about whether the defense succeeded, there was a plea agreement, or if some other circumstances resulted in the charges being dropped or dismissed.

As a side note, Richard Glen Boire of the Center for Cognitive Liberty and Ethics points out that it could be argued that the "mescaline" that is a federally controlled substance refers only to synthetic and/or artificial mescaline. Because of the wording of Schedule I, where peyote is scheduled by name, and because the wording which specifically mentions chemicals "of vegetable origin", it could be inferred that the explicit intent of the Controlled Substances Act is to not include substances "of vegetable origin" in Schedule I unless specifically listed.

Related Case Law:
  • Khat : US Federal: US v Hussein, US District of Maine, 2003 (351 F.3d 9)
  • Khat : Ohio State: State v Samatar 2003, 787 NE 2d 691, Ohio App 10 Dist
  • Ayahuasca : US Federal : UDV-USA v Ashcroft 2003. Apellate Decision