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A Discussion of Tabernanthe iboga's Legal Status in Schedule I in the United States
by Keeper Trout
v2.0 - Jan 14, 2016
Citation:   Trout K. "A Discussion of Tabernanthe iboga's Legal Status in Schedule I in the United States (v2)". Erowid.org. Jan 8 2016. Erowid.org/plants/iboga/iboga_law1.shtml
The name Tabernanthe iboga is listed under the Schedule I entry for the chemical ibogaine. Being listed in Schedule I means that a substance is illegal to manufacture, buy, possess, or distribute without a DEA license.

The law in the United States is supposed to be clearly worded so that it can be understood. In this case there is some strangeness, and this unusual entry merits comment.

Other Schedule I and II plants (whole plant or plant part) are scheduled in entries specifying their Latin binomial names (genus species), separately from controlled substances present in them.1

In the case of iboga, however, the name of the plant, Tabernanthe iboga, is mentioned only among the "trade and other names" listed for the Schedule I chemical ibogaine (DEA controlled substance #7260).

"(21) Ibogaine" "Some trade and other names: 7-Ethyl-6,6ß,7,8,9,10,12,13-octahydro-2-methoxy-6,9-methano-5H-pyrido [1', 2':1,2] azepino [5,4-b] indole; Tabernanthe iboga"
[Title 21 Code of Federal Regulations - Food and Drugs [21 CFR] Chapter 2. § 1308.11]
Ibogaine itself had been listed in the Comprehensive Drug Abuse Prevention and Control Act of 1970 along with other Schedule I "Hallucinogenic substances" under the words:
"(c) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation :"
[PL 91-513, Oct. 27, 1970: § 202, page 1249.]
Although there are some cases that have decided otherwise, most decided US case law indicates that a plant can be regarded as a "material containing a controlled substance", so the way Tabernanthe iboga is listed has produced some confusion and has raised some questions.

Jon Hanna summarizes:
Richard Boire, Esq. and Alexander Shulgin commented years ago that the plant itself was not really properly scheduled, since its botanical name is merely presented within a short list of "trade and other names", and clearly the isolated chemical and the whole plant are two different things. The legal argument that Boire proposed to support this fact is the idea that other scheduled plants that contain naughty chemicals have been listed using their botanical name; and then the active naughty chemical has also been listed as its own unique entity. Sasha opined that the manner of inclusion of Tabernanthe iboga was improper and a bit of a sneaky trick.2
Sasha may have been right about this being a "sneaky" entry, yet it is also an inescapable fact that "Tabernanthe iboga" is among the most common "trade names" associated with ibogaine when it is used by humans. Boire's reasoning seems sound enough from a lawyer's point of view (compare the iboga entry with the peyote entry or that of cannabis or the opium poppy1,3) but this would be resource-intensive (i.e. very expensive) to establish and lacks any certainty of a positive outcome. So far as we know, this argument has never been attempted as a defense in court. The questions raised are intriguing, as the inclusion only as a "trade name" within the ibogaine entry suggests that determination of the illegality of Tabernanthe iboga would be based on the ibogaine content. As most parts of the plant are known to contain ibogaine, it seems quite reasonable to believe that arrest for possession of the living plant — or parts of the plant — could occur; this might well lead to conviction for simple possession of the controlled substance ibogaine. The peculiar topic of the seeds, which reportedly do not contain detectable levels of ibogaine4, does appear to potentially place them outside of the interest of the law, or at least might cause the prosecution to fail to secure a conviction for possession of seeds, but that seems like an unwise and expensive area for anyone to want to test in a court of law. Most plants containing illegal drugs are not included by name within the law for the corresponding drugs; Tabernanthe iboga is among the very few plants bearing this distinction.3

It is quite clear that the DEA can at least arrest and attempt to prosecute anyone if they find them with any plant containing a Schedule I or Schedule II substance. It is also clear that they are more likely to do this, and are more likely to actually prevail, if the plant material has been dried/processed.

Abundant examples from the real world demonstrate that, outside of those plant species declared by name to be Schedule I, this only rarely occurs for plants and/or plant materials that are known to contain Schedule I or Schedule II substances. That could change at any time.

The definitions in the Controlled Substances Act Section 102 concerning the legislative concept of the "manufacture" and "production" of scheduled substances bear attention:
"(14) The term "manufacture" means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container;" "(21) The term "production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance."
[PL 91-513, Oct. 27, 1970: § 102, page 1244.]
There is a noteworthy provision within the definitions of "manufacturing" that authorizes the seizure and destruction of any plant or plant material containing scheduled substances.
"(g)(1) All species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this subchapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the United States."
[PL 91-513, Oct. 27, 1970: § 511 > Forfeitures, page 1278.]
This means that even if arrest is not associated with discovery by law enforcement, loss of the plant or plant material without compensation is permissible under the law. Even if that "material" represents years of the owner's work, living plants can be destroyed. An increasing number of people can already attest to this reality.

There is another important fact to consider. There was a time in history when a person being found innocent in the United States meant that was the end of their ordeal. Changes occurred granting prosecutors the "right" to appeal verdicts, on the notion that if the accused had a right to appeal it would only be fair if the prosecutor did also. An accused person can be found innocent up to three times before being able to walk away. It is up to the prosecution whether they will accept an innocent verdict or appeal it. Few people have the financial resources necessary to maintain a federal defense for years and years at a time.

It is our shared amateur opinion that the plant Tabernanthe iboga should be regarded to have been declared a Schedule I plant in the United States, at least de facto, despite questions raised by its unusual listing in US law.

Notes #
  1. The following entries in the Controlled Substances Act have prompted questions related to the distinguishing of plants listed separately from their corresponding scheduled substances.
    (15) The term "marihuana" means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
    (16) The term "narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    (A) Opium, coca leaves, and opiates.
    (B) A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates.
    (C) A substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in clause (A) or (B). Such term does not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine.
    (18) The term "opium poppy" means the plant of the species Papaver somniferum L., except the seed thereof.
    (19) The term "poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
    [PL 91-513, Oct. 27, 1970: § 102, page 1244.]
    and on page 1250, under Schedule II:
    "(a) Unless specifically excepted or unless listed in another schedule, of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    (1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate.
    (2) Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause (1), except that these substances shall not include the isoquinoline alkaloids of opium.
    (3) Opium poppy and poppy straw.
    (4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine."
    The law includes several provisions allowing importation, distribution or use of those substances in medicine and for research purposes.

    It might be added that the failure of the law to specifically outlaw the plants Erythroxylum coca and Erythroxylum novogranatense by name has occasionally been presented as meaning that the cultivation of the coca bush is legal, but as it is not possible to cultivate a coca plant without it bearing leaves, this proposal lacks merit.

  2. Jon Hanna. 2015. Personal communication.
  3. Similar to Tabernanthe iboga, in Title 21, Peyote's appearance as a controlled substance is through being listed as a trade name within the mescaline entry (DEA controlled substance #7415).

    However, in contrast to iboga the scheduling also includes a clear definition about what is intended to be scheduled.
    "(26) Peyote": "Meaning all parts of the plant presently classified botanically as Lophophora williamsii Lemaire, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture, or preparation of such plant, its seeds or extracts" One other fascinating but trivial distinction exists in the observation that Tabernanthe iboga is the only one of the Schedule 1 binomials to omit the epithet of the describer.
    [21 CFR - Chapter 2. § 1308.11]
  4. Goutarel R, Poisson J, Croquelois G, Rolland Y, Miet C. "Constituants des graines de Tabernanthe Iboga Baillon. I. Alcaloides". Ann Pharm Franc. 1974;32(9-10):521-524.
Revision History #
  • v1.0 - Nov 2, 2015 - Keeper Trout, Jon Hanna & Erowid - First draft.
  • v2.0 - Dec 14, 2016 - Keeper Trout - Major edit for clarity and additional commentary, with thanks to friends at DMT-Nexus.