Despite a growing body of research into kratom’s use and potential, the Food and Drug Administration (FDA) continues to push for a kratom ban at both state and federal levels. Even amid the current pandemic, the FDA kratom ban is being pushed through in several state and local legislatures, and the FDA continues its work to prevent access to safe and effective kratom at the federal level.
The American Kratom Association (AKA) are on the front-lines of this fight. They are doing everything they can to keep kratom safe and available for the many whose lives it improves. Today we take a moment to highlight the current state of this battle over the future of kratom, the AKA’s recent efforts, the state of the federal Kratom Consumer Protection Act, and what you can do to keep the FDA kratom ban from moving forward.
The Kratom Consumer Protection Act
What is the Kratom Consumer Protection Act?
One of the AKA’s primary goals is to push for the passage of the Kratom Consumer Protection Act (KCPA) at both state and federal levels. Broadly speaking, the Act looks to protect against a kratom ban and ensure that no dangerous, chemically-contaminated kratom can enter the market. In part, the Kratom Consumer Protection Act aims to do the following:
- Establish the legal definition of kratom as a food, which would help clarify which legal frameworks and precedents can be applied to kratom manufacturers and products
- Keep kratom safe by prohibiting chemical additives to kratom products
- Make kratom dosages more transparent and consistent by setting standards for alkaloid levels
- Completely prohibit the addition of synthetic alkaloids
- Improve safety and transparency by requiring chemical testing and clear labeling on all kratom products
Legislative Delays in the Time of COVID-19
However, the state-by-state efforts have been significantly impacted by the current coronavirus pandemic. According to the AKA’s April Update, the Kratom Consumer Protection Act had been steadily moving forward in 20 states.
However, with the current COVID-19 prevention efforts, state and local progress on the Kratom Consumer Protection Act has largely been delayed. 26 state legislatures have, as of April 3rd, delayed their hearings.
On the federal level, however, the legislature is still in full swing — and the AKA is still actively working against a kratom ban and towards the passage of the KCPA. The FDA continues, according to recent AKA publications, to deliberately delay the bill and spread misinformation about kratom’s safety and effects — all in furtherance of what would effectively be an informal FDA kratom ban.
In response, the AKA has scheduled dozens of meetings with federal legislators and their staffers. The goal of these efforts is to provide full, clear evidence of kratom’s actual effects and its safety (when properly produced and regulated, as it would be under the Kratom Consumer Protection Act).
FDA’s Continued Push for a Kratom Ban
While the Kratom Consumer Protection Act has been put on pause (at least at the state level), the FDA continues to push for local kratom bans. In some jurisdictions, it appears that the FDA’s anti-kratom agenda is working — even though many of their arguments are based on misleading research and faulty legal arguments.
The FDA Kratom Ban in Ohio
Ohio is one such state, in which the FDA is demonstrating its commitment to furthering a kratom ban. There, increasingly severe measures are being taken to enforce an unofficial ban on many kratom products, including all kratom capsules.
According to the Ohio Department of Agriculture’s Division of Food and Safety: Kratom “products embargoed by ODA . . . were in capsule and drinkable forms . . . and therefore considered adulterated.” The same communication later clarified that “any consumable form of kratom found in Ohio likely will be embargoed and ultimately destroyed”.
Ohio is effectively banning any pill/capsule/other kratom product where the form makes it clear that the product is intended for human consumption.
Why The Ohio Kratom Ban is Bad Policy
The Ohio embargo on kratom as a “food additive”, according to the AKA update, follows a directive from the FDA. Under this directive, pill and capsule forms are supposedly enough to make kratom a “food additive”. That definition is important to the FDA, as they only have the authority to regulate products such as kratom when they fall into the “food additive” category. Put simply: no food additive status, no FDA kratom ban.
However, labeling kratom capsules as a food additive is misleading, manipulative and, importantly, not backed by good law.
The relevant legal decision comes from a 1993 7th Circuit case, titled U.S. v. Two Plastic Drums (984 F.2d 814, 7th Cir. 1993). There, the FDA used an identical argument to try to classify black currant oil as a “food additive” when in capsule form. The FDA argued that the capsules themselves were the “food”, while the black currant oil they contained was merely an additive.
The court, in that case, shut down the FDA’s argument by granting summary judgment to the defendant — effectively signaling that there was no legal justification for such an absurd classification of capsules as food, nor of their contents as mere “food additives”.
And yet now, more than a quarter century later, the FDA is relying on the same tired, ineffective, and legally impermissible argument to push for a kratom ban. While the classification is unlikely to be effective at the federal level, it appears to be effective enough to persuade Ohio and other local authorities to enact temporary FDA kratom bans.
What You Can Do to Help
The kratom industry, and the millions of users who have chosen to make kratom a part of their daily life, are at an important moment.
While the AKA continues to do its work on a federal level, the current crisis largely prevents them from operating at the state and local levels; meanwhile, the FDA continues to work in the state arenas, spreading misinformation that could threaten to put an effective kratom ban in many areas of our country.
We join with the American Kratom Association in asking users to do what they can to support the Kratom Consumer Protection Act and ensure that safe and transparent kratom remains available to those in need.
Even in this time of social distancing, there are still many things that you can do to advocate for kratom against local FDA bans.
- Sign up with the American Kratom Association to offer testimonials and support
- Submit video testimonials (through the AKA website)
- Even in times of isolation, we can still work to get the word out about how kratom has positively impacted our lives. Sharing your story with a video testimonial is an easy and impactful way to reach the hearts and minds of your local community
- Outreach like this has been hugely successful in the past. Videos of this sort were key for overturning the 2016 kratom ban. At that time, the DEA had recommended scheduling kratom as a controlled substance. The kratom community came together, submitting 23,232 comments and testimonials (99.1% of which opposed the ban), leading to an unprecedented decision for the DEA to withdraw its scheduling recommendation.
- Contact your state and local representatives
- AKA asks people to help view the passage of the Kratom Consumer Protection Act as a significantly important issue. That’s because it would not only help to fight an FDA kratom ban, but would also help to ensure that only pure, high-quality kratom is available in the market, and not a dangerous and chemically adulterated product.
- You can reach out to your local legislature directly or can use the AKA’s advocacy platform
- Sign the AKA petition to President Trump
The future of the American kratom community is once again in peril. But the power to make change is in our hands. As a community of informed users and advocates, we must come together to ensure that our voices are heard and that safe and effective kratom remains available for those in need.