A federal government watchdog agency says in a new report that the Drug Enforcement Administration should improve the process through which it considers granting religious exemptions for psilocybin and other controlled substances, asserting that the existing route lacks clarity on timing, evaluation and other matters.
The 80-page report from the United States Government Accountability Office (GAO) notes that although psilocybin remains a Schedule I controlled substance under the Controlled Substances Act (CSA), people may petition the DEA for exemptions to use it—or other controlled substances—for religious purposes.
“DEA has established a process for these petitions, but its guidance doesn’t set clear timeframes for the decision-making,” it continues. “Exemption petitions have taken from eight months to over three years to be resolved.”
The GAO focused specifically on psilocybin use under the Religious Freedom Restoration Act (RFRA), which is meant to protect religious practices from undue government burdens. The agency found that the DEA exemption procedure itself was burdensome.
The new report is noteworthy in that the federal government is now criticizing drug enforcement officials.
“Selected stakeholders reported several barriers to the legal access and use of psilocybin for religious practices under the [RFRA],” GAO says. “For example, DEA established a process for parties to petition for a religious exemption from the Controlled Substances Act to use controlled substances for religious purposes. However, DEA’s guidance does not inform petitioners on its timeframes to make determinations on completed petitions.”
In 2019, the DEA began a rulemaking process around petitions for religious exemptions, the GAO report adds, “but there is no timeframe for issuance of the notice or final regulations.”
While some who’ve petitioned the DEA for special drug-related exemptions have accused the agency of dragging its heels, the new report is noteworthy in that the federal government itself is now criticizing drug enforcement officials.
“Over an eight-year period—from fiscal year 2016 through January 2024—DEA reported that 24 petitioners requested a religious exemption for various controlled substances,” GAO states. “As of January 2024, DEA reported that none of these petitions had been granted an exemption.”
Six of the 24 petitions were for psilocybin. Of those, three were withdrawn, and another three were still pending DEA determination, the GAO report says.
“The three pending religious exemption petitions related to psilocybin ranged from about eight months to over three years from the date of receipt,” it notes. “DEA’s information also showed instances where finalized actions regarding exemption petitions related to other controlled substances have been pending a determination for an extensive period—one almost five years and one almost eight years.”
As for how to address the issues, the GAO makes four main recommendations.
Each of the four recommendations is attached to a status tracker.
First, it says the DEA “should more clearly communicate the types of information that the [RFRA] petitioners should provide to allow DEA to evaluate petitions for religious sincerity.”
It also says the agency should “more clearly communicate the standards and relevant factors” when making a determination, as well as “establish timeframes for DEA to make determinations on completed religious exemption petitions.”
It further encourages the DEA to provide “information for petitioners to be able to receive updates on the agency’s process related to exemption reviews.”
Each of the four recommendations is attached to a status tracker. “When we confirm what actions the agency has taken in response to this recommendation,” the GAO says, “we will provide updated information.”
The GOA review results from a request by Congress in 2022. In a report attached to spending legislation, lawmakers said the watchdog should look at the impact of CSA enforcement in jurisdictions allowing for psilocybin, barriers to accessing the psychedelic for medical use, recommendations on how to remove research blockades and more:
Psilocybin Report.—The Committee directs GAO to report to Congress within one year of the date of enactment of this Act on the barriers to State, local, and Tribal programs that incorporate psilocybin products, including for therapeutic use and religious, Indigenous, or spiritual practices. The report shall: (1) review the impact of Controlled Substances Act enforcement on psilocybin use legally sanctioned by States, local governments, and Tribes; (2) identify barriers to accessing therapeutic use of psilocybin in States that have made such use legal under State law; (3) recommend ways to improve the processes used to obtain Federal authorization to conduct research with psilocybin-related substances; and (4) identify barriers to legal access to and use of psilocybin for religious, Indigenous, or spiritual practices under the Religious Freedom Restoration Act.
While exemptions from the Controlled Substances Act for religious use are rare, they’re not entirely unheard of. A legal settlement in April between several government agencies and an Arizona-based nonprofit, for example, permits the group to import and use ayahuasca as a religious sacrament.
The organization, the Church of the Eagle and the Condor (CEC), said at the time that it was “the first non-Christian church to receive protection for its spiritual practices regarding Ayahusca,” adding that the development under the RFRA marks “the first time in history a church’s right to import and share its sacrament has been secured without going to trial.”
The CEC sued the DEA, the Department of Justice, the Department of Homeland Security and Customs and Border Protection in 2022, over DHS’s seizures of shipments of ayahuasca intended for ceremonial use. The government had also threatened that the group and its members could face federal prosecution.
In May, however, the federal government said that the settlement was irrelevant in the case of a separate psychedelic church in Iowa that wants to incorporate ayahuasca into its ceremonies.
The Iowaska Church of Healing first sent its petition to the DEA, asking for an exemption around ayahuasca use, in 2019. A separate request for a tax exemption with the Internal Revenue Service initially received no response from the agency, according to court filings.
The church found an unusual ally in anti-drug Senator Chuck Grassley (R-IA), who court filings say was instrumental in expediting the regulatory appeals process back in 2021. A Grassley spokesperson told Marijuana Moment in 2022 that the senator’s help shouldn’t necessarily be viewed as an endorsement of the church’s point of view on psychedelics, however.
A doctor seeking to use psilocybin to treat cancer patients in end-of-life care is currently suing the DEA over delays and rejections.
Some have also criticized the DEA’s lack of clarity on determinations and timelines for petitions unrelated to religious use.
A Washington State doctor seeking to legally use psilocybin to treat cancer patients in end-of-life care, for example, is currently suing the DEA over delays and rejections related to a requested exemption under state and federal “right to try” (RTT) laws, which are intended to give patients with terminal conditions the opportunity to try investigational medications that have not been approved for general use.
“DEA has rejected each request,” lawyers for the doctor, Sunil Aggarwal, argued in an opening brief earlier in 2024, “but has never addressed the arguments that Dr. Aggarwal has raised in support of them.”
“If DEA wants to disclaim authority to grant Dr. Aggarwal access to psilocybin under the CSA and RTT,” the brief says, “it must provide a reasoned explanation for how that decision comports with the CSA and the agency’s own precedent.”
Photograph of ayahuasca ceremony in Peru by François Delonnay/Archivo Centro Takiwasi via Wikimedia Commons/Creative Commons 4.0
This story was originally published by Marijuana Moment, which tracks the politics and policy of cannabis and drugs. Follow Marijuana Moment on Twitter and Facebook, and sign up for its newsletter.
