Attorney Robert Rush on Psilocybin Law & Taking on The DEA

INTERVIEW 01

Talking psilocybin rescheduling and drug law reform with Attorney Robert Rush

In this edition of the Mycopreneur newsletter, we welcome attorney Robert Rush, a specialist in psychedelic and psilocybin law. This is the first part in a new series of Mycopreneur newsletters that spotlight the various guests on the podcast and people of interest in the global mushroom entrepreneurial community 🚀

Please tell us about some of your recent work in the field of psilocybin and psychedelic law

“My most recent thing I've been working on is the DEA scheduling of the psychedelic compounds DOI and DOC, and challenging that with my co-counsel, Brett Phelps. DOI is really the critical molecule. The 5-HT2A receptor is a critical brain receptor for any sort of classical psychedelic, psilocybin included. And if you're going to research that, my understanding of it from all the scientists I work with is that DOI is kind of like a reference standard for that type of research. So even if you're not working with DOI, if you're working with any classic psychedelics in a lab research setting, DOI may be involved in the process. It's just an incredibly effective tool for trying to figure out how the 2A receptor works.

DOI is the last unscheduled 5-HT2A receptor agonist, and the DEA has conceded that there is no human use documented in any medical literature whatsoever. You can't find one documentation where any medical person ever found that humans use this. But yet they want to schedule this despite it being in a thousand NIH (National Institutes of Health) papers for no reason whatsoever. They admit that it's not being illicitly trafficked or anything, but yet they move forward and they have.

We ended up having a hearing in the DEA headquarters, the first since MDMA for scheduling a psychedelic. And it was really an eye opening experience seeing how the DEA functions and what their corporate culture is like.”

There has been talk lately of Psilocybin being changed from Schedule 1 to Schedule 2 under the Controlled Substances Act. What are some practical implications of this potential rescheduling?

Rush: There are considerable implications. It would fall probably under ‘Right to Try’ laws. This designation enables terminally ill patients to access experimental therapies that have not yet been approved by the U.S. Food and Drug Administration.

It also changes the dynamic for research; individuals and companies wanting to research a Schedule 2 substance as opposed to Schedule 1 are much more open to doing so.

With a Schedule 1 substance, you have to have very tightly approved studies focused on only a single issue. If you want to change it, you have to have approval to do something different. Schedule 2 would open it up to where people would be much more free with the research; those would be the main things.

If Psilocybin goes to schedule 3, it'd be even more open.

What are your thoughts on the underground product landscape - the fact that there are so many psilocybin mushroom chocolates, gummies, and research chemical products claiming to be mushrooms that are available all over the place at smoke shops, gas stations and online, etc.?

I have a lot of thoughts. I've counseled various clients in this space, what I refer to as the ‘gas station psychedelic market’.

And we have to be honest that this space potentially presents problems for us as advocates and people looking to reform the law. But I don't believe criminal enforcement is the solution ever to any of the drug problems.

Prohibition always exacerbates things. If you want to look at a return on investment perspective, I think if you look at the war on drugs and the DEA budget and what the results have been, nobody would tolerate that in a business setting. We throw billions of dollars at it and we end up with more people dead every year.

Prohibition just doesn't work. So I think an alternative strategy needs to consider regulation, safe access, and harm reduction. So from that perspective, with these products, the biggest problem is they are in a confusing gray area. You have some people who are just selling schedule one drugs in chocolates or edibles, whatever it is.

There's no way that you can really argue that’s legal. They are just getting away with it through non-enforcement. And that's great until enforcement occurs. The other thing is the Analogue Act in regards to research chemical based products.

I got to present at the Petrie-Flom Center at Harvard Law School last year on panel with Leonard Picard and I spoke on the Analogue Act, which is kind of a large focus of my practice and it's extremely vague as to what exactly an analogue is because the language in the act is poorly written. It's completely vague and it gives the DEA a lot of arguments that they can argue, even when their own scientists have disagreed on the facts of the matter. And the DEA has fought to silence their scientists who disagreed with them.

So we have this confusing thing where it's difficult to tell what is in the products that might fall under the Analogue Act. This also provides opportunities from a defense standpoint because it is vague language. So if you have a well-designed defense and your business is operated in certain ways, it can provide opportunities for you to fight against an analogue claim.

But these companies are out there doing considerable amounts of business. And I always tell them that two things will attract the DEA attention: a high-profile death or injuries, or a large amount of money. And if you put the two together they are really attracting attention because the DEA wants to seize assets and if you have companies that have a lot of money, and you end up with some sort of injuries or something, it could end up there.

And potentially the penalties for this scenario are draconian if they could fall under statutes that could potentially some of the operations you could look at under what's called the Kingpin Statute, where you're looking at 20 to life. So really people are just kind of playing loose and there hasn't really been enforcement. But all of this comes back to the Controlled Substances Act in the way we regulate these things.

The biggest problem isn't that the research chemicals; most of them are some sort of a tryptamine in there and they're not inherently incredibly dangerous drugs.

I think one would have to eat like 50 grams of some of these research chemicals to be a toxic dose according to the law. I'm not advising anyone do that. The product makers have to hide these ingredients due to prohibition and they come up with these ‘proprietary nootropic blends’, and the consumer doesn't know what they're getting, which I think is the scary part.

But sometimes that's the only access a person may have to some sort of psychedelic product which may be important to them.

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Dennis