A recent court case in the United Kingdom may be the first to look at the legality of possessing and selling dried mescaline-containing cacti.1 After being found in possession of 4.69 kg of dried Trichocereus peruvianus cactus chips, the defendant, Saul Sette, was arrested and charged with possession with intent to supply the Class A drug mescaline (along with two other related charges).

The U.K. Misuse of Drugs Act (MDA) states that, "Any preparation or other product containing a substance or product" that is listed in Class A (the equivalent of U.S. Schedule I) is also controlled. The defendant did not contest that he was selling the dried cacti.

In pre-trial hearings, the question was raised whether dried mescaline-containing cacti qualify as a "preparation" or "product" under this law. If not, then they are not illegal to possess or sell, even for human consumption. Prior to his arrest, the defendant requested information on the legality of the material from the Home Office Drug Legislation and Enforcement Unit and received a response stating that, "In itself, drying in order to preserve for the purely botanical/horticultural/herbarium purposes--'mere preservation'--does not in law amount to preparation […]." This, along with evidence that customs officials have levied a Value Added Tax on T. peruvianus cacti sold by other vendors, was used to show that the government does not consistently consider dried mescaline-containing cacti to be illegal.

The defense also pointed out that a similar legal battle was recently fought over the status of psiloc(yb)in-containing mushrooms. In that case, the courts ruled that the same section of the MDA was ambiguous. As a result, the British government added fresh mushrooms to the list of controlled substances, but did not add Trichocereus cacti. The defense argued that if the government had meant mescaline-containing cacti to be illegal, it needed to add these cacti to the law as it did with psilo(cy)bin-containing mushrooms. The only plants or fungi currently listed in the MDA are plants in the genus Cannabis, plants of the species Papaver somniferum (the opium poppy), leaves from any plant of the genus Erythroxylon from which cocaine can be extracted (coca leaves), and the newly-added fungi that contain psiloc(yb)in.

The defense argued that a) the law regarding the terms "preparation" and "product" was insufficiently clear for prosecution to proceed, and b) even if the law was deemed clear enough, the dried cactus material that the defendant was selling was not a "preparation" or "product" since the cacti were not in "a state in which they could be used".

Both the prosecution and defense quoted from Erowid in court. Mike Jay, author of Artificial Paradise and editor of Emperors of Dreams, appeared as an expert witness for the defense. He testified that dried cactus is not a "preparation" and that, in fact, the process of drying made it harder to digest than fresh cactus material. Apparently much of the prosecution's cross-examination concerned Erowid, attempting to establish the rationale behind the site and the status of its content. The prosecution then cited experience reports from Erowid in an attempt to show that people do indeed ingest dried mescaline-containing cacti for their psychoactive effects. Jay and the defense countered that further preparation--rehydration, boiling, and filtering--is necessary to make dried cacti ingestible, and that there is no history of people eating enough dried Trichocereus cactus chips to achieve effects.

On March 20, 2007, the case was thrown out in pre-trial hearings. The judge agreed with the defense's argument that the law was not sufficiently clear to proceed with prosecution, stating that it would amount to an "abuse of process". Because of this, he did not make a determination on the question of whether the defendant's cacti qualified as a "preparation" or "product". But the fact remains that for the time being, dried Trichocereus cacti have been shown to be legal to possess and sell in the U.K.