A federal watchdog agency said in a new report that the Drug Enforcement Administration should improve its process for considering approval of religious exemptions for psilocybin and other controlled substances, arguing that the current procedure lacks clarity on issues such as timing and evaluation.
The 80-page report from the U.S. Government Accountability Office (GAO) noted that while psilocybin remains a Schedule I controlled substance under the Controlled Substances Act (CSA), people can apply for an exemption from the DEA to use psilocybin (or other controlled substances) for religious purposes.
“While the DEA has established a process for these petitions, its guidelines do not set clear deadlines for decision-making,” the report continues. “Waiver petitions have taken anywhere from eight months to more than three years to resolve.”
GAO focused specifically on psilocybin’s use under the Religious Freedom Restoration Act (RFRA), which is intended to protect religious practices from excessive government burdens. The agency found that the DEA’s exemption process is itself burdensome.
“Selected stakeholders reported several barriers to lawful access and use of psilocybin for religious practice under the Religious Freedom Restoration Act,” GAO stated. “For example, DEA has established a process for parties applying for a religious exemption from the Controlled Substances Act to use controlled substances for religious purposes. However, DEA's guidance does not inform applicants of a deadline for making a decision on a completed application.”
Drug Enforcement Administration: DEA should improve religious exemption petition process for psilocybin (mushrooms) and other controlled substances https://t.co/bASkVkNk6Y
— U.S. Government Accountability Office (@USGAO) May 30, 2024
The GAO report said the DEA began a rulemaking process on religious exemption petitions in 2019 but “has not set a deadline for issuing a notice or final rule.”
While some who have petitioned the DEA for drug-related exemptions have criticized the agency for being slow to act, the new report is notable because the federal government itself is criticizing drug enforcement agents.
“DEA reported that over the eight-year period from fiscal year 2016 through January 2024, 24 petitioners applied for religious exemptions for a variety of controlled substances,” GAO wrote. “As of January 2024, DEA reported that none of these petitions had been granted an exemption.”
Six of the 24 petitions were for psilocybin, three of which have been withdrawn and the remaining three are awaiting a decision from the DEA, according to the GAO report.
“The three pending religious exemption petitions related to psilocybin range from approximately eight months to more than three years from the date of receipt,” the report states. “DEA information also shows that final action on exemption petitions related to other controlled substances has been pending for extended periods of time, including one case at nearly five years and another at nearly eight years.”
GAO offered four key recommendations on how to address the problem.
First, the DEA says it “needs to more clearly communicate the types of information Religious Freedom Restoration Act petitioners must provide to enable the DEA to evaluate the religious sincerity of their petitions.”
It also said the agency needs to “more clearly communicate the criteria and relevant factors” when making its decisions and “establish deadlines for DEA to make decisions on completed religious exemption petitions.”
It further encourages the DEA to provide “information to enable applicants to receive up-to-date information regarding the agency’s processes related to waiver review.”
Each of the four recommendations is accompanied by a status tracker, which states: “We will provide an update once we have seen what action authorities have taken in response to this recommendation.”
The study is the result of a request from Congress in 2022. In a report attached to the spending bill, lawmakers said GAO should consider the impact of CSA enforcement in jurisdictions that allow psilocybin, barriers to accessing psychedelics for medical purposes, and recommendations on how to remove impediments to research.
Psilocybin Report. The Committee directs GAO to report to Congress, not later than 1 year after the enactment date of this Act, on barriers to State, local, and tribal programs that incorporate psilocybin products for therapeutic purposes or for religious, Native American, or spiritual practices. The report shall (1) consider the impact of implementation of the Controlled Substances Act on legally authorized use of psilocybin by State, local governments, and tribes, (2) identify barriers to therapeutic use in States that have legalized the therapeutic use of psilocybin under state law, (3) recommend ways to improve the process used to obtain Federal authorization to conduct research on psilocybin-related substances, and (4) identify barriers to lawful access to and use of psilocybin for religious, Native American, or spiritual practices under the Religious Freedom Restoration Act.
Exemptions from the Controlled Substances Act for religious use are rare but do exist: for example, a legal settlement reached in April between several government agencies and an Arizona-based nonprofit group allowed the group to import and use ayahuasca as a religious sacrament.
At the time, the organization, the Church of the Eagle and Condor (CEC), said it was “the first non-Christian church to receive protection for its spiritual practices related to ayahuasca,” adding that the development under RFRA marked “the first time in history that a church's right to import and share the sacrament has been secured without having to go to court.”
The CEC filed suit against the DEA, Department of Justice (DOJ), Department of Homeland Security (DHS), and Customs and Border Protection (CBP) over DHS's seizure of a shipment of ayahuasca for ritual use in 2022. The government also warned that the group and its members could face federal prosecution.
But the federal government said last month that the settlement was irrelevant to a case involving another psychedelic church in Iowa that wants to include ayahuasca in its rituals.
Iowaska Church of Healing first petitioned the Drug Enforcement Administration (DEA) for an exemption for ayahuasca use in 2019. A separate request for a tax exemption from the Internal Revenue Service (IRS) initially went unanswered, according to court documents.
The church has found an unlikely ally in anti-drug Sen. Chuck Grassley (R-Iowa), who worked to expedite the appeals process for the regulations in 2021, according to court documents. But a spokesman for Grassley told Marijuana Moment the following year that the senator's support shouldn't necessarily be seen as an endorsement of the church's position on psychedelics.
Others have criticized the DEA's decision and the clarity of its deadlines for petitions unrelated to religious use.
For example, a Washington state doctor seeking legal use of psilocybin to treat cancer patients receiving end-of-life care is currently suing the DEA over delays and denials related to his exemption request under state and federal Right to Try (RTT) laws, which are intended to give terminally ill patients the opportunity to try investigational drugs that are not approved for general use.
“The DEA has denied all of the requests,” argued the doctor's attorney, Sunil Agarwal, in opening statements earlier this year, “but has not addressed any of the arguments Dr. Agarwal raised in support of his requests.”
“If the DEA wishes to waive its authority under the CSA and the RTT to grant Dr. Agarwal access to psilocybin, it must provide a rational explanation for how its decision fits with the CSA and the DEA's own precedent,” the report states.
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