One of the questions we are most often asked is about the legality of ayahuasca in Spain. Is ayahuasca legal in Spain? To answer this question we have to look at international and national legislation, as well as some recent court rulings that create jurisprudence, as it is a relatively new substance in our country.
- The Convention on Psychotropic Substances of 1971
Ayahuasca is not controlled under the 1971 United Nations Convention on Psychotropic Substances, to which Spain acceded in 1976 [BOE]. “In this convention, which regulates psychotropic substances, “there is no direct allusion to ayahuasca, nor to the component plants of ayahuasca: Banisteriopsis caapi, Psychotria viridis or Diplopterys cabrerana“, as lawyer Antonio Martín Pardo explained in his speech during the World Ayahuasca Conference held in Girona in 2019. Dr. Pardo is co-author of the book ‘The legal status of ayahuasca in Spain’.
What is controlled, specifically in Schedule 1 (the most restrictive) of the aforementioned convention is DMT, dimethyl tryptamine, the active component of P. viridis and D. cabreana. The fact that ayahuasca includes DMT in different percentages sometimes leads to confuse the part with the whole and to consider that since ayahuasca contains DMT and DMT is banned, ayahuasca is also banned.
But this is an aberration, as Diego de las Casas, lawyer of the Plataforma de Defensa de la Ayahuasca explains: “DMT is endogenously present in most plants and living beings in varying quantities. Strictly applying this reductionist view, tomatoes should also be banned for containing DMT”.
However, the possible confusion that the 1971 Treaty could lead to was resolved by the INCB – the UN drug control body – itself. In its 2012 report [.pdf], the UN body states: “No plants, including those containing psychoactive ingredients, are currently controlled under the 1971 Convention“. In case there is any doubt, it goes on to give khat and ayahuasca as examples: “For example, cathine and DMT are psychotropic substances included in Schedule I of the 1971 Convention, while the plants and herbal preparations containing them, namely khat and ayahuasca, respectively, are not subject to any restriction or control measures“.
Extract from the INCB document.
In the same report, the INCB clarifies that the DMT controlled in the 1971 Convention refers to synthetic DMT, not to DMT from natural sources.
- National legislation
While the INCB/UN does not consider ayahuasca to be a drug, it does recommend that countries that are signatories to the conventions regulate, if appropriate, the drink at the local level.
There are currently two laws regulating narcotic substances in Spain, neither of which mentions ayahuasca. The first one dates from 1967, and is an update of the 1961 UN Convention (which Spain did not sign). It lists substances such as opium, morphine, marijuana and cocaine, but there is not a single mention of ayahuasca. The second dates from 1977, when Spain had already acceded to the 1971 Convention, and ayahuasca is not mentioned either.
- Spanish case law
Despite the fact that the law seems clear on the issue of ayahuasca, cases of ayahuasca seizures and arrests for importing or possessing ayahuasca come to light with some frequency, publicised by law enforcement agencies and reported in the media. Why this apparent contradiction?
On the one hand, the fact that ayahuasca is not on the lists of prohibited substances of either the UN or the Spanish government does not automatically mean that it is legal to introduce it into Spanish territory. Specifically, in 2004, the Ministry of Health published an order banning the importation of a series of plants due to their toxicity; ayahuasca was included in this list. However, says Martín Pardo, “due to a formal issue, this order was annulled, so ayahuasca is not illegal at the administrative level in Spain either”.
On the other hand, many of the police operations are initiated because the security forces and judges themselves are unaware of the legal status of ayahuasca. As lawyer Antonio Martín Pardo explained in the aforementioned presentation, of the 16 seizures that finally went to trial, only one of them ended in a conviction, and that was due to an agreement between the parties. Of all the other acquittals, only two of the 15 sentences “were based on the fact that ayahuasca is not a controlled substance”, explains Martín Pardo. “The rest of the judgments, although acquitted, were based on an incorrect reasoning: ayahuasca has DMT and DMT is a drug. The idea behind publishing the book is that judges learn that ayahuasca is not a controlled substance“.
Martín Pardo’s talk took place in 2019, and barely two years later it seems that things have started to change. An elaborate sentence [.pdf] of the Provincial Court of Malaga acquitted last May a defendant accused of importing 5 litres of ayahuasca for personal consumption. The 17-page judgement argues that “ayahuasca as a plant preparation is not subject to international or national control or prohibition in Spain as a psychotropic substance, drug or narcotic“, or in other words, it cannot be included in the concept of “toxic drug, narcotic or psychotropic substance”, narcotic drug or psychotropic substance” as referred to in article 368 of the Spanish Penal Code, according to the lengthy summary of the case in the article ‘El (pen-)ultimo juicio sobre ayahuasca en España’, signed by three ICEERS members in the newsletter of the International Drug Policy Consortium (IDPC).
The judgement ends with an anti-prohibitionist plea against ayahuasca by the court, after having heard the arguments of lawyer Francisco Azorín, from the Brotsanbert law firm, and the ICEERS experts. Carmen Castellanos, the judge judge who has ruled on the case, states that “a policy of greater tolerance accompanied by rigorous controls and regulation, avoiding absolute prohibitionism, could be more effective, or on the whole could do more good than harm”.
If you are interested in the legal nuances behind the legal situation of ayahuasca in Spain, you can watch this illustrative lecture by Dr. Antonio Martín Pardo:
–‘Precisiones en torno al régimen legal de la ayahuasca en España’, Antonio Martín Pardo, Aya2019.
–‘Instrumento de adhesión de España al Convenio sobre sustancias sicotrópicas. Hecho en Viena el 21 de febrero de 1971’, Boletín Oficial del Estado, 10 de septiembre de 1976.
–‘Informe de la Junta de Fiscalización de Estupefacientes correspondiente a 2012’, JIFE/INCB, enero de 2012.
–‘¿De qué hablamos cuando hablamos de ayahuasca?‘, Plantaforma, 15 de julio de 2020.
–‘Orden de 31 de julio de 1967, que enmienda las listas anexas al Convenio de 1961’, BOE, Ministerio de Sanidad, marzo de 1967.
–‘Protocolo de modificació de la convención única de 1961 sobre estupefacientes’, BOE, 15 de diciembre de 1976.
‘El (pen-)último juicio sobre ayahuasca en España’, International Drug Policy Consortium (IDPC), 4 de mayo de 2021.
–‘Orden SCO/190/2004, de 28 de enero, por la que se establece la lista de plantas cuya venta al público queda prohibida o restringida por razón de su toxicidad’, BOE, 6 de febrero de 2004.