NOTE: The proces has been postponed to a later, yet unknown date
Can we keep it ‘dry’ ?
For consumers nothing much seems to have changed since the Dutch Supreme Court banned the sale of dried magic mushrooms. That is: after the initial scare, the sale of ‘dry’ has continued in certain cities that do not take maintaining this law very seriously. ‘Fresh’ is a term that already poses problems for a shop with normal mushrooms. But since a test case against a Dutch smartshop-wholesaler has determined that the freshness of magic mushrooms ends when they are in refrigerator for one hour, it is Liberty Hall. The owner of the smartshop is the first person in the branch to appeal against this decision. The earlier judicial process shows that the Dutch legal system in this area is ludicrous to say the least, some would even say incompetent. A legal thriller in smartland.
What went before: in November 2002 the Supreme Court ruled that dried magic mushrooms should be considered illegally prepared drugs, because they are dried fresh mushrooms. According to the interested parties, this defies all logic. Think of it: fresh mushrooms are perfectly legal, as was confirmed by a study of the Department of Health that confirmed they were completely harmless. Once this mushroom no longer contains water, it changes from a legal eco-drug into a dangerous and illegal substance. One can only guess the reasons on which this bizarre decision was based. Some suspect pressure from abroad i.e. the USA that actively fights everything that has to do with hallucinogenic mushrooms. And traditionally the American authorities don’t limit the fight to their own territory. As a result some Dutch companies have been forced to adjust their website for American visitors. An example: the US government is currently investigating the possibility to forbid the sale of mushroom growing instructions!
Even before the judgment of the Supreme Court, a representative of the above-mentioned smartshop was arrested. The police found mushroom growkits and fresh mushrooms in his car. Probably as much confused about what is legal and not as the smartshop owners, the police decided to seize the goods on impulse. This incident would become the issue of a new law suit that went against the High Court ruling.
The mushroom crates case
On 10 February 2003 this case was dealt with in court. The defending lawyer was Adèle van der Plas, the woman that defended the Santo Daime church and magic mushrooms before the High Court. The central issue was to find out if the mushrooms found in the car were treated drugs or not. The defense claimed that there was no evidence that the mushrooms were ‘actively’ dried. The only objection the prosecution could think of, was that the mushrooms ‘were ready for consumption and therefore illegal’. Quite a poor argument for a legally trained professional, because this has nothing to do with the law. No one in court knew how to continue after such a show of intelligence, so that the judge took over the role of prosecutor. Even before the start of the trial, he had explained his point of view: the mushrooms were treated – and therefore illegal – because they were packed and stored in well ventilated crates. This ventilation could be considered an active treatment. However, the judge did not know that these crates are ordinary mushroom crates, widely used in the edible mushroom industry. The defense was left no room to clarify this misunderstanding. During the trial the judge, his fellows and the prosecutor worked together to find all sorts of legal arguments to consider the mushrooms as treated. The defense had strong arguments, but the judge wouldn’t hear of it; he found staring at the ceiling more interesting. A toxicologist was not allowed as an expert witness and the head of Drug Laws of the Department of Health was also not heard because the prosecution found that ‘they would not contribute to the defense’.
As a playful element, the defense put a number of magic mushrooms in front of the judge and asked him to decide which ones were legal and which ones were not. The mushrooms ranged from completely fresh to completely dry. In the opinion of the judge the tray of fresh mushrooms that were only slightly dried were illegal. Even in the refrigerator, a fresh mushroom looses 5% water per day, and according to the judge a mushroom that has dried in a natural process is also illegal. The question is when a fresh mushroom is no longer fresh. Is it after loosing 1% moist? 2% or 5%? The position of the court is completely unclear and furthermore it gives the police the possibility to act arbitrarily. Therefore it is entirely unacceptable for the industry that already seems to be in an insecure position.
Verdict defies Supreme Court
A verdict was reached two weeks later: 240 hours of community service and two months of suspended sentence, for the representative, that is. The court ruled that magic mushrooms are a risk to public health, thus ignoring all findings of the Department of Health. All research (to which the court had access) has unanimously concluded that mushrooms are not dangerous. Confronted with so much ignorance, one can only be bewildered. The verdict means that a fresh mushroom becomes illegal as soon as you pack or store them.
In spite of all the stress and the costs Ananda Schouten, the owner, intends to appeal. Ananda: “For us, it is a matter of principle. Even if our representative would have gotten a symbolic sentence, we would have appealed. We will fight this in the Supreme Court!.' He cautiously adds: “If our representative can deal with the stress, of course.'
The accused have chosen to take the attack and are bringing in new weapons in the mushroom trial of the century. The International Narcotics Control Board of the United Nations is prepared to explain their point of view. Meanwhile, the smartshop continues the distribution of fresh mushrooms.
A very exciting first session was held in May 2004. The prosecutor was the same as in the earlier case. Like in the first case, the expertise of the toxicologist was not allowed, and the International Narcotics Control Board was not admitted into court. It probably was the media attention and the strong argumentation of Adèle that finally made the judges decide to postpone the case and to invite the experts. The three judges found the case so interesting that they decided to take a whole day for the case. Normally one judges deals with ten cases in a day.
According to Ananda, the verdict, that will be given 29 October in Den Bosch, will decide the future of magic mushrooms in Dutch smartshops. That is very well possible, although the verdict might also result in some cities deciding to tolerate the sale of mushrooms (like some are already doing with dry mushrooms) – and this would in fact mean arbitrariness and inequality before the law. This would of course fit perfectly well in the Dutch policy of pragmatic tolerance and consensus.
Considering the bigger picture, Ananda says: “I consider it a purely political decision backed by conservatives. It is part of a policy that, a part from making it difficult for smartshops, has already successfully managed to ban ephedra and kava kava. A new European law is also being made that prohibits mentioning the psychoactive effects of products. And then there is the E.U. Food Supplement Directive that says that all new food supplements, introduced after 1995, have to be registered and will not be allowed after research has shown their harmlessness. Of course, the submitter has to pay for such research. Already it is not allowed to claim certain effects of a product and you are required to mention the daily dose on the packaging, as if you are supposed the product every day.'
Source: Soft Secrets, September 2004, adapted and translated by Azarius.