Here is what I could find:
---Salvia divinorum is uncontrolled in the United States. This means all
parts of the plant and its extracts are legal to buy, sell, cultivate,
and possess without a license or prescription. If sold as a supplement,
sales must conform to U.S. supplement laws. If sold for consumption as
a food or drug, sales are regulated by the FDA.
The federal analog act generally requires that, in order to qualify as
an analog, a substance must be chemically similar to a substance which
is federally scheduled. Salvia Divinorum is chemically quite different
from other scheduled substances and as a plant is quite unlikely to be
targeted by this act.
Selling Salvia divinorum for human consumption as a "drug" is probably
illegal in the US under the Food, Drug & Cosmetics
Act and its sale as a drug would be regulated by the FDA. Selling an
unapproved drug in the US can be prosecuted under the FD&C's
"misbranding" clause. (FD&C Section 502 (http://www.fda.gov/opacom/laws/fdcact/fdcact5a.htm))
The more it is packaged and marketed as a drug (for example a 10x
extract hyped as 'the new ecstasy') the more likely it is to be treated
as an "illegal drug" by law enforcement agents.
The US Air Force is considering whether to include Salvia divinorum in the list of banned drugs. See Plant could get airmen in legal hot water (http://www.af.mil/stories/story.asp?storyID=123006335), Jan 2004.
California Analog Act</font>
Under the strict California Analog Act (http://www.erowid.org/psychoactives/law/law_ca_analog_act.shtml), salvia could potentially be prosecuted if it is sold for human consumption as a psychoactive drug.
US Federal Analogue Act</font>
Under the Federal Analogue Act, salvia fails to meet the "chemically
similar" criteria and thus is not subject to the analogue act
provisions. However, the DEA has
recently changed their view on this and now states:
<blockquote>
"Salvia Divinorum, Salvinorin A, and Divinorin A are not listed in the
Controlled Substances Act. If sold for human consumption, Salvia may be
subject to control under the Analogue statutes because of its
functional pharmacological similarities to other CI hallucinogens like
THC."
-- from DEA Diversion Salvia Page (http://www.deadiversion.usdoj.gov/drugs_concern/salvia_d/summary.htm) Feb 2002
</blockquote>
However the DEA's analysis is completely flawed. The Federal Analogue Act, as currently understood (http://www.erowid.org/psychoactives/law/analog/analog.shtml)
requires that a substance be "chemically similar" to a controlled
substance not "pharmacologically similar" as the DEA suggests in their
quote. Very little is known about the pharmacology of Salvia and there
is still much unknown about the pharmacology of THC. Saying the two are
'pharmacologically similar' might satisfy the paragraph II of the
Analogue Act test, but its also just wrong. Perhaps the DEA has
performed human pharamcology studies on salvinorin that they are
keeping secret, but most likely the authors of this article are just
trying to use their position to further extend the reach of their power
well beyond the scope of the law.
Salvinorin is not a chemical analog of any scheduled substance. ---erowid
Apparently there was a bill that attempted to make Salvia illegal back
in 2002, but it is stuck in committee. Right now, as far as I can tell,
there aren't any plans to schedule it. Supposedly if they were going to
use the emergency scheduling power then they would put it on the DEA
website, which doesn't have anything like that. So as far as I can
tell, we're good for now. But who knows what those guys are thinking,
eh?