No Such Thing As a Legal High?


As the Drug Policy Alliance recently noted, the Food and Drug Administration is cracking down on psychoactive herbs "marketed as street drug alternatives." Many of these products contain ma huang or other sources of ephedrine, which are perfectly legal (so far) to sell over the counter as dietary supplements. But when the manufacturer intimates (or baldly states) that taking them might be enjoyable, the FDA says, they "are not dietary supplements under the legal definition, because they are not intended to be used to augment the diet, to promote health or to reduce the risk of disease." The same reasoning applies to psychedelic herbs, such as ayahuasca and salvia divinorum, that the government has not quite gotten around to explicitly banning. The FDA maintains that herbal preparations sold "to affect the mental or psychological states of those taking the products" have to be approved by the government as "new drugs"–even if they've been used for thousands of years.

That's a path no company is likely to take, since it would mean investing many millions of dollars in a drug that could not be patented. But it would be interesting to see how the FDA would evaluate the efficacy of drugs whose sellers promise "hours of bliss," "incredible visionary & mystical experiences," or "an overall stimulation of the mind, body and spirit."


NEXT: Our Taxing Future

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  1. I bet if there were a law proposed that it’s OK to have fun, it would be voted down. Too controversial and might be bad for us.

  2. If it feels good, we have an obligation to regulate it.

  3. Intensifying the drug war, tighter regulation of currently legal drugs, smoking bans: next thing you know, they’re coming after alcohol.

    Oh wait, they lost that one. The Puritan’s Vietnam.

    Is this crackdown going to extend to things like gingko biloba and St. John’s wort?

  4. Nah, let’s get right to the hard stuff: Morning Glory seeds and Jimson weed. Maybe while they’re at it, they’ll require a permit to visit the local Home Depot …

  5. As St. John’s Wort is supposed to help with depression, and thus “alter moods,” wouldn’t it clearly fall under the rubric of herbal preparations sold “to affect the mental or psychological states of those taking the products,” and thus be classified as a “new drug?” I wonder what Orrin Hatch thinks about this?

  6. Joe,

    That’s the same tactic they’ve used in Britain to define the crime of brandishing a weapon. If you use a screw driver or shovel to defend yourself, the use of such is now defined as a crime. Great logic.

    Not that intentions don’t matter. If you accidentally kill someone, say in an auto accident, you are liable for far less legal penalties than, say, premeditated murder. The moral distinction in this case, however, is pretty stupid. I can legally ‘alter my consciousness’ with a glass of wine or beer without FDA approval.

  7. Very true md, but let’s not forget grapefruit juice also affects a variety of prescription drugs. Unless the govt. decides to start mandatory pharm courses, maybe these things are better left in the hands of the physicians and pharmacists giving them out.

  8. I do wish that they would publicize some of these herbs’ contraindications with prescription drugs a bit more. Did you know that St. John’s Wort interferes with the efficacy of birth control pills? If the government is going to do *something* it should at least be something useful.

  9. So whether a material is or is not a drug is determined by how it is described. The feds are getting mighty postmodern with this one.

  10. EMAIL:

    DATE: 12/11/2003 01:43:07
    Be wiser than other people if you can; but do not tell them so.

  11. EMAIL:
    DATE: 12/21/2003 03:12:19
    The Tao’s principle is spontaneity.

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