Threats to Kratom Legality in Nevada, Tennessee Prove We Need Broader National Drug Policy Reform

On March 15, 2022, the Nevada State Board of Pharmacy released a Notice of Intent to Act Upon a Regulation (pdf) that would place kratom, specifically mitragynine and 7-hydroxymitragynine on the state’s list of Schedule I controlled substances. According to an April 6th message from the American Kratom Association to its email list, a hearing scheduled for April 14 was called off, and the move to ban kratom was stricken from the board’s agenda due to public pressure.

In Tennessee, apparently, language was quietly inserted into a bill to make distribution of kratom a Class A Misdemeanor. The bill, SB1997, was intended to place tianapetine on the list of Schedule II controlled substances, and was sitting in the Senate Judiciary Committee with the anti-kratom language having been quietly added. According to the AKA in an April 6 tweet, the Chairman of the committee decided against supporting the kratom amendment.

Both states have kratom regulation bills on the books. In 2014 Tennessee mistakenly included kratom on a list of “synthetic” substances it was banning. Thanks to local kratom activism and advocacy, the mistake became clarified, and in 2018 the Attorney General declared natural leaf kratom legal with restrictions on sales to persons under 21 and labeling requirements. Nevada passed a Kratom Consumer Protection Act (KCPA) in 2019.

There is confusion about what regulation and KCPA laws do and don’t do. Depending on the state, the laws will often place age limits, labeling requirements, and purity requirements on kratom products. This is a good first step in the way of harm reduction in regulation vs. harm creation in prohibition. While state assemblies generally do not want to litigate the same issues year after year, KCPA and other regulation laws do not permanently guarantee that kratom will never become outlawed. Such a feat would require a fundamental change to the way states determine how substances are scheduled.

Under the DSHEA Act of 1994, substances sold as foods or dietary supplements before that year are grandfathered in and regulated as such. Evidence that kratom was sold before that year could guarantee a more permanent legality, classifying kratom as an Old Dietary Ingredient (ODI). Although this is most likely the case, thus far no evidence has come to light. Even if kratom could classify as an ODI, ODI’s can be outlawed if the FDA can demonstrate “an unreasonable or significant risk of injury or illness”. Such was the case with ephedra.

Furthermore, the process by which a substance becomes scheduled varies from state to state.

States differ as to whether the legislature or a regulatory agency (or both) is primarily responsible for scheduling. For example, in South Carolina, Rhode Island, and Tennessee the scheduling determination is made by a regulatory agency (usually with an explicit provision for a legislative override); in New York and California, state legislative action is required. In other states (Iowa, Hawaii, Mississippi), the legislature and the state regulatory agencies are involved in the scheduling and rescheduling process.

Institute of Medicine (US) Committee to Study Medication Development and Research at the National Institute on Drug Abuse; Fulco CE, Liverman CT, Earley LE, editors. Development of Medications for the Treatment of Opiate and Cocaine Addictions: Issues for the Government and Private Sector. Washington (DC): National Academies Press (US); 1995. 8, State Laws and Regulations. Available from: https://www.ncbi.nlm.nih.gov/books/NBK232175/

In Nevada, according to the March 15 Notice of Intent, “Existing law authorizes the State Board of Pharmacy to adopt regulations to add, delete or reschedule controlled substances listed in schedules I, II, III, IV. and V of the Uniform Controlled Substances Act.” The notice contains an extremely thin justification for a kratom ban, with absolutely no evidence presented to back up claims in the notice that kratom has a “high potential for abuse”, nor that immediate and long-term economic effects of a ban will only have a “beneficial effect” on the public.

Small state agencies should not have the power to criminalize thousands of people with the stroke of a pen based on little to no scientific evidence. The KCPA laws are a step in the right direction, but justice can be achieved only with an end to the devastating, cruel, greedy, and stupid War on Drugs. It’s long past time for a new national approach based on science, health, harm reduction, and common sense drug policy.

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