Magic Mushrooms, San Pedro and Bufo in Spain: Is It Legal to Possess, Grow or Use Them?

Psilocybin mushrooms, the San Pedro cactus (mescaline), ayahuasca (DMT) and «bufo» (a toad secretion containing 5-MeO-DMT) are now openly advertised in Spain through retreats and ceremonies. That visibility creates a common misunderstanding: that these substances are tolerated, or that what is legal in another country is legal here. Neither is true.

In short: using them in a private home is not a criminal offence; using or carrying them in public is a serious administrative offence punishable by a fine; and growing, selling or giving them to others can be a public health offence under Art. 368 of the Spanish Criminal Code (CP), even when no money changes hands. Every rule cited below has been checked against the text published in the Spanish Official Gazette (BOE).

Substances seized by the police: what it means and what happens next

If the police find mushrooms, a cactus, an extract or a vial on you in the street, in a car or on your way out of a ceremony, the case can follow one of two tracks:

• Administrative track: if the quantity and circumstances suggest personal use, officers file a report under Organic Law 4/2015 on the Protection of Public Safety. You will later receive notice that sanction proceedings have been opened, and the substance stays seized.
• Criminal track: if there are signs that the substance was meant for others (quantity, prepared doses, cash in small notes, messages, an organised ceremony), a criminal investigation under Art. 368 CP is opened, which may involve arrest and appearance before a judge.

On either track, the key evidence is the laboratory analysis: what the substance is, its weight and how much active compound it contains. With mushrooms or cactus this matters even more, because the plant material is not itself the controlled substance; it contains it in a proportion that has to be measured.

Why they are controlled: Schedule I of the 1971 Vienna Convention

The Spanish Criminal Code does not list drugs. Article 368 CP refers to «toxic drugs, narcotics or psychotropic substances», and the lists come from the international conventions ratified by Spain. Psilocybin, mescaline and DMT are not narcotics under the 1961 Single Convention; they are psychotropic substances under the 1971 Convention on Psychotropic Substances, which Spain joined by an instrument published in the BOE on 10 September 1976, and under Royal Decree 2829/1977, which applies it.

Schedule I of Annex 1 to that Royal Decree includes psilocybin and psilocin (the active compounds in magic mushrooms), mescaline (found in San Pedro and peyote) and DMT (N,N-dimethyltryptamine, found in ayahuasca). Article 2 of the Decree prohibits «use, manufacture, import, export, transit, trade, distribution and possession» of Schedule I substances, including for the purposes of the Smuggling Act.

One point that matters for the defence: the schedules list molecules, not species. They do not name the mushroom or the cactus. Whether the seized material contains the substance, and how much, is a matter for expert evidence, not something that can be assumed from what a mushroom looks like or what a plant is called.

Using or carrying them in public: fines from €601 to €30,000

Using these substances at home, with no impact on third parties, is neither a crime nor sanctioned under the Public Safety Act. What that law punishes is use or possession in public. Article 36.16 of Organic Law 4/2015 makes it a serious offence to use or possess illegal drugs or psychotropic substances, even if not intended for trafficking, in public places, streets, public establishments or public transport, and to leave the equipment used for that purpose in those places. The same regime applies to cannabis, as explained in is smoking cannabis legal in Spain?.

Paying within fifteen days is quick, but it waives your right to object. If the substance was not yours, you were not in a public place or it has not been shown to be a controlled substance, consider filing objections before paying.

Growing mushrooms or keeping a San Pedro cactus at home

Article 368 CP punishes those who «carry out acts of cultivation, production or trafficking, or otherwise promote, encourage or facilitate the illegal consumption» of drugs. Cultivation is caught as a way of facilitating consumption by others, so the decisive question is what the crop is for. Case law has generally treated cultivation solely for personal use as falling outside the offence, the same approach explained in drug possession versus trafficking in Spain. Growing more than a reasonable personal amount, or sharing what is grown, moves the case into criminal territory.

• Visible cultivation: Article 36.18 of Organic Law 4/2015 makes it a serious administrative offence to plant or grow these substances «in places visible to the public» when it is not a crime. A terrace or balcony visible from the street may be enough.
• Sale of plants and fungi: Order SCO/190/2004 lists Trichocereus pachanoi («San Pedro cactus»), peyote (Lophophora williamsii), Psilocybe fungi and the ayahuasca vine (Banisteriopsis caapi) among the plants that may not be sold to the public because of their toxicity. It is a health regulation on sales, not a criminal provision, and it sets no fine for owning the plant.

A garden centre or website selling the cactus as an ornamental plant does not make it lawful to extract mescaline or prepare the cactus for others to consume. That is precisely the conduct Article 368 describes. Our defence work in drug cultivation cases follows the same logic: prove the purpose, rather than argue about the plant.

When it is a crime: penalties under Article 368 CP

The Code does not say which substances «cause serious harm to health». Courts decide with the help of expert evidence, and there is no official list in the BOE placing psilocybin or mescaline in either category. It is one of the first battles for the defence, because it is the difference between a maximum of three years and a maximum of six. The same debate arises with other substances, as discussed in MDMA and synthetic drug trafficking.

Nor does the Code define the «large quantity» (notoria importancia) threshold in Art. 369.1.5.ª: reference quantities have been set by the case law of the Supreme Court's Criminal Chamber for the most common substances. We have not found an official threshold for mushrooms, cactus or their active compounds, so treat any figure quoted without a source with suspicion. The gross weight of plant material says little; what matters is the active compound. Higher up the scale are the aggravating factors of Article 369 CP, Article 369 bis for criminal organisations and Article 370 CP, which raises the penalty by one or two bands where minors are used or the conduct is of extreme seriousness.

Ayahuasca and bufo ceremonies: the organiser carries the risk

Retreats and ceremonies raise a different issue from personal use. Whoever prepares ayahuasca, San Pedro or bufo and serves it to participants is not merely a user: they facilitate consumption by others, which is conduct expressly described in Art. 368 CP. The offence does not require a profit motive, so calling the payment a «contribution», «donation» or «workshop fee» does not change the nature of the act, although charging can be used as evidence of trafficking.

• Holding the ceremony in premises open to the public, by those running them or their staff, is an aggravating factor (Art. 369.1.3.ª CP).
• So is supplying the substance to anyone under 18, to people with a mental disability or to anyone undergoing addiction treatment or rehabilitation (Art. 369.1.4.ª CP).
• Owners and managers of public premises who tolerate illegal drug use or fail to take due care to prevent it commit a serious administrative offence (Art. 36.19 of Organic Law 4/2015).
• If a participant suffers serious harm or dies, liability for reckless homicide or injury (Arts. 142 and 152 CP) may also be considered, depending on what is proven about preparation and care.

A participant who only consumes in a private home does not commit a crime or an administrative offence simply by attending. The risk arises when they carry the substance or use it in public, or obtain it and share it with others.

Bufo (5-MeO-DMT): not on the schedules, but not safe ground

«Bufo» is a toad secretion smoked for its content of 5-MeO-DMT (5-methoxy-N,N-dimethyltryptamine), a different molecule from the DMT in ayahuasca. DMT is in Schedule I of Annex 1 to Royal Decree 2829/1977. 5-MeO-DMT does not appear in that Annex according to its consolidated text in the BOE, which already includes the orders adding new substances in 2023, 2024, 2025 and 2026 (the most recent being Order SND/362/2026).

That does not make bufo «legal». Its absence from the schedules makes Art. 368 CP harder to apply, but prosecutors could turn to other public health offences, such as Art. 359 CP, which punishes anyone who, without authorisation, produces substances harmful to health or dispenses or supplies them with six months to three years in prison, a fine of six to twelve months and special disqualification from any profession or trade for six months to two years. The schedules are also amended by ministerial order fairly often. Before organising or joining a bufo ceremony, the position should be checked against the law in force on that day.

Ordering online, importing and travelling with these substances

Article 2 of Royal Decree 2829/1977 expressly prohibits the import, export and transit of Schedule I substances. Ordering mushrooms or extracts online from abroad, or arriving in Spain with them in your luggage, is not simply «possession for personal use»: depending on quantity and purpose, bringing the substance into Spain may be investigated as an offence under Art. 368 CP or as smuggling. The fact that the product is sold openly in the country where you bought it does not change Spanish law.

If you have been summoned over a parcel held at customs, or arrested at an airport, your first statement shapes the rest of the case. Before saying anything, read your rights if you are arrested with drugs in Spain.

What to do (and what not to do) if mushrooms, San Pedro or bufo are seized

• Do not make statements without a lawyer about what the substance was for: phrases such as «it was to share» or «I brought it for the ceremony» can turn a fine into a criminal case.
• Ask for the lab report and check it: identification of the substance, net weight and active compound. With plant material, gross weight is misleading.
• Do not give up on personal use: supply to others is not presumed; it is inferred from evidence, and that evidence can be challenged.
• If it is a fine, watch the deadlines: fifteen days to pay with the 50% reduction or to file objections (Art. 54 of Organic Law 4/2015).
• If you run ceremonies, do not wait for a problem: the criminal risk falls mainly on you, not on the participants.

Our Madrid office handles defence in personal use versus trafficking cases and other drug and public health offences. You can call us on +34 91 078 65 74.