Salvia divinorum legal information

Please read this information carefully. I have collected as much information as possible on this issue and tried to back up all legal issues especially where there is conflict between state and federal legislation. Please note that this is not a complete record and will at all times be a work in progress.


Disclaimer

I am not a legal professional. While much of this has been discussed with legal professionals, anything written on these pages is my personal interpretation presented to the best of my knowledge and understanding. The reader is reminded to do his/her own research or consult a legal professional [however, be aware that it is common for legal professionals to make mistakes too]. This site and the author reject any responsibility arising from the use or abuse of this information.

Follow these links to more detail:
Salvia in the Australian media
Salvia in the legislation process & protest petition site (off site)


Salvia legislation summary

Since June 1st 2002.....
* Salvia divinorum herb is illegal to manufacture [grow/process], possess, sell or use.
* All parts of the species Salvia divinorum are scheduled, including the live plant [there is an exemption that MAY apply to seeds].
* Salvinorin A is illegal to manufacture, possess, sell or use.


The law in Australia in regards to Salvia divinorum and Salvinorin A

At the November 2001 sitting of the TGA (Therapeutic Good Association = the american FDA) the committe decided that both Salvia divinorum and its active constituent salvinorin A will be scheduled under schedule 9 in the "Standard for the Uniform scheduling of drugs and poisons" (SUSDP).

Schedule 9 New entries
SALVIA DIVINORUM.
8-METHOXYCARBONYL-4A,8A-DIMETHYL-6-ACETOXY- 5-KETO-3,4,4B,7,9,10,10A-SEPTAHYDRO-3-(4-FURANYL)- 2,1-NAPHTHO[4,3-E]PYRONE *(SALVINORIN A).

The definition of Schedule 9 (S9) is:
"Poisons which are drugs of abuse, the manufacture, possession, sale or use of which should be prohibited by law except for amounts which may be necessary for medical or scientific research conducted with the approval of Commonwealth and/or State or Territory Health Authorities."

The reason given for their decision in regards to Salvia and salvinorin A is as follows:
"11.5 SALVIA DIVINORUM DECISION 2001/33 - 7.
The Committee agreed to confirm its foreshadowed decision to include Salvia Divinorum in Schedule 9 of the SUSDP, on the basis of high potential for abuse and risk to public health and safety."

The committe gave a period up to the end of January 2002 for any objections to be made, in which case the decision would have to go to review. Apparently no such objection was made and the decision became law on the 1st of June 2002.

The SUSDP itself is not a legally binding document as it is by a federal agency, while drug and health laws are state matters . As drug laws are state matters, each state and territory needs to confirm the details of the SUSDP scheduling by parliamentary assent (rare), by decree of the Governor or by inclusion in it's permanent legislation. The Governor's decree is usually only used if a state is trying to legislate quicker or different to the Federal agencies or to override federal legislation.

The SUSDP (and all current changes) are law within all states, WITHOUT any further action required by the state governments. All states and territories have such automatic acceptance of the SUSDP in either their health or drug legislation. This does not mean that the laws are the same in all states, but it does mean that Salvia is scheduled in all states.

New South Wales
The "Poisons and Therapeutic Goods Act" of NSW part 4A, division 1, section 31 states:

Part 4A
Application in New South Wales of Commonwealth therapeutic goods laws
Division 1
31 Application of Commonwealth therapeutic goods laws to New South Wales
(1) The Commonwealth therapeutic goods laws, as in force for the time being and as modified by or under this Part, apply as a law of New South Wales.
(2) Those Commonwealth therapeutic goods laws so apply as if they extended to:
(a) things done or omitted to be done by persons who are not corporations, and
(b) things done or omitted to be done in the course of trade or commerce within the limits of New South Wales.


This means that the state health act has made the SUSDP schedules law within the state of NSW.


Queensland
In Queensland the SUSDP forms the basis of the scheduling of all poisons and drugs under the state health act. The definitions of the act state that 'standard' refers to the SUSDP. Thus, anything listed in the SUSDP (incl salvia) is automatically scheduled as per the SUSDP.

Specifically the Health (Drugs and Poisons) regulation 1996 states in appendix 7, 'Regulated Poisons' at paragraph 8 that any SUSDP S9 poison is included in that appendix [Salvia is S9 of the SUSDP].

This was the original law that restricted Salvia in Qld, but more recently Salvia divinorum has been listed in the 'Drugs Misuse Regulations' in schedule 2 - Salvia divinorum. This is the same schedule that includes Cannabis, Heroin, Speed etc.



Victoria
The Drugs, Poisons and controlled substances Act in part II Poisons and controlled substances, Division 1, section 12D:
12D Incorporation of the Commonwealth standard
(1) Any part of the Commonwealth standard to be incorporated by reference in the Poisons Code may be so incorporated as in force at a particular time or from time to time.
(2) To the extent that it is incorporated by reference in the Poisons Code, the Commonwealth standard forms part of that Code.


Furthermore in part 1 section 4 of the same act:
Schedule 9 Poison means a substance in Schedule 9 of the Commonwealth standard;


Western Australia
In WA the Poisons Act 1964 lists
- Schedule 9
All substances listed in Schedule 9 to the SUSDP



Northern Territory
The Misuse of Drugs Act has the following entry in schedule 2:
"Salvia Divinorum, including extracts and other substances structurally derived from Salvia Divinorum and having hallucinogenic properties"

This is the same schedule that lists addictive drugs and drugs of abuse.

Salvia was also initially only illegal in NT under the referred scheduling of the SUSDP.

Poisons and Dangerous Drugs Act", part 1, section 6A
6A. Application of SUSDP
(1) A reference in or under this Act
(a) to a Schedule by number is a reference to the Schedule of that number in Part 4 of the SUSDP; and
(b) to an Appendix by a letter of the alphabet is a reference to the Appendix of that number in Part 5 of the SUSDP.



Tasmania
Misuse of Drugs Act 2001
PART 3 - Controlled plants
9. Salvia divinorum


Poisons (Prohibited Substances) Amendment Order 2002
4. Schedule 1 amended (Prohibited substances)
Schedule 1 to the Principal Order is amended as follows:
(a) by inserting after item 41A the following item: 41B. 8-methoxycarbonyl-4A,8A-dimethyl-6-acetoxy-5-keto-3,4,4B,7,9,10,10A-septahydro-3-(4-furanyl)-2,1-naphtho[4,3-e]pyrone (otherwise known as Salvinorin A).
(b) by inserting after item 66 the following item: 66A. Salvia divinorum.



A.C.T.
In the ACT Salvia divinorum is scheduled specifically as the live plant. While the dried herb is not specifically scheduled, it is covered by the same act as a preparation containing salvinorinA, which is a scheduled substance.

Criminal Code Regulation 2005
Schedule 1 Controlled drugs
Part 1.2 Prohibited substances
89 Methyl (2S, 4aR, 6aR, 7R, 9S, 10aS, 10bR)-9-acetoxy-6a, 10b-dimethyl-4,10-dioxo-dodecahydro-2-(3-furyl)-2H-naphtho[2,1-c]pyran-7-carboxylate (Salvinorin A)


Criminal Code Regulation 2005
6 Controlled plants
A growing plant mentioned in schedule 2 is a controlled plant.
Schedule 2 Controlled plants
23 Salvia divinorum




But surely a live plant can't be scheduled.....
Normally the law makes a distinction between live plants and plant material [referred to as 'preparation']. In Australia originally 3 plants were prohibited federally, which are opium poppies, Erythroxylum species that produce cocaine, and Cannabis. Under federal legislation, other drug containing plants such as mescaline containing cacti, Catha edulis and Ephedra plants are NOT illegal and this was commonly interpreted to mean that Salvia divinorum as a plant may not be illgal either. However Salvia divinorum is the first plant to be named with its full species name in the schedule and thus includes the live plant. The TGA has confirmed this interpretation.

Salvia divinorum seed will probably be illegal as they are prepared plant matter. However, once they are treated (??!!) they will fall under the exclusion for treated seeds and may then be legal. There is no definition of seed treatment provided by the SUSDP or TGA, so this may be shaky ground.

Customs is usually the first agency to schedule herbs and drugs as this is done without public scrutiny and is seen as an effective tool to limit the import of such items. Customs has not as yet scheduled salvia, however they can still confiscate it and pass it onto other agencies to prosecute under the state and federal drug & therapeutics laws.

It's a sad story. Please make your friends aware of the legal status of salvia as it is freely available in most countries and many overseas vendors are not aware or do not care about the consequences that might result from a salvia shipment to Australia.

©Torsten 2002 [revised 2007]