KENTUCKY BECOMES THE 12TH STATE TO CODIFY KRATOM PROTECTIONS FOR CUSTOMERS

Capitol building in Frankfort, Kentucky

Despite new scare tactics and the same warnings from the Food and Drug Administration, the march toward embracing kratom regulations took a significant leap forward as Kentucky made it a dozen states that have now codified protections for the herbal supplement.

A back-and-forth debate over House Bill 293 concluded earlier this month when Gov. Andy Beshear signed the bill as a “compromise” between the two sides debating the kratom question. That leaves Kentucky kratom customers with an extra layer of protection in an industry that was previously unregulated as part of Kentucky’s unique kratom bill.

State Rep. Kim Moser introduced the bill and admitted to the local press that she had to work with detractors to find a middle ground to allow the bill to arrive on the governor’s desk. Those compromises came in committee and led to a favorable reporting out of committee. On its third reading, HB293 passed out of the House of Representatives by a vote of 87-7.

Originally the bill called for licensure of kratom processors and retailers. Those provisions were deleted and the details of certificates of analysis and label requirements were tweaked in the substitute bill. In the form that made it to the floor of the House, Kentucky’s approach to regulating kratom stood out from similar measures passed in other states.

What’s in the bill?

Starting with the formal title, HB293 stands out as an example of how local governments can find a middle ground in the face of scare tactics and allegations of undue influence by lobbyists. Other states have passed a Kratom Consumer Protection Act, known as KCPAs, and last year a federal version was introduced into Congress.

This bill is similar in most aspects to those measures, however, given that Kentucky already has a KCPA (Kentucky Consumer Protection Act) the bill was simply titled ‘AN ACT relating to kratom’ through a change in the House committee. It’s not just the name. Many details of the law itself are different from the wave of kratom laws that have passed in recent legislative sessions around the country.

While other measures have made it illegal to adulterate kratom, Kentucky’s version goes into detail. The law as it is written does ban adulterants; the language goes on to specify the ban on adding “a dangerous non-kratom substance that affects the quality or strength of the kratom extract or kratom to a degree that may injure a customer.” That same section of the law also specifically bans “poisonous” adulterants and anything that is covered in Kentucky’s controlled substances schedules.

What Kentucky’s law does have in common with other measures is the basic details: An age requirement of 21 to purchase kratom, label requirements that include a QR code and batch information and a limit on the potency of kratom products similar to measures in other states. The law also includes penalties of $500 and then $1000 for any subsequent offenses, which is on par with penalties included alongside similar kratom laws.

Kentucky’s kratom discussion also included a new wave of fear tactics to cloud the debate over kratom’s safety. A local news report featured a family member who recently died of a heart attack and featured calls to ban the substance. This is far from the first state where such coverage followed a proposed kratom law, and like others contained questions about the factual accuracy of the report.

The National Institute on Drug Abuse has determined the risk of overdose on kratom alone to be extremely low. Additionally, the animal studies and concerns around kratom’s safety have monitored the potential of respiratory issues, NOT cardiac concerns

Advocates, as well as NIDA, have made it clear: The real risk associated with kratom comes from adulterated products and bad actors in the industry. So while kratom advocates have always empathized with loved ones who have lost family members who were using kratom, they’ve been consistent in their view that robust kratom regulations are the best way to safeguard the industry.

Tweaks in the Senate

After the compromise in the House, HB293 appeared to be on track to make it through the Senate as it was written before a final detour added another unique twist on this piece of legislation.

In its Senate committee, the bill was again modified with an eye toward potential federal legislation. Other states have tried tying state kratom laws to federal regulations; the wording of HB293 shows how those sentiments are changing. Similar efforts included wording in legislation that would immediately schedule kratom should the federal government make that decision.

The FDA has tried twice, and failed twice, to introduce the idea of scheduling kratom.
With that in mind, lawmakers in Kentucky opted to change the law to say that federal regulations “shall supersede and take precedence” over the state law, without specifically mentioning the scheduling of the herbal supplement. Some advocates are cautious, given that the Senate’s amendment specifically mentions the FDA and the Drug Enforcement Administration, two agencies that have put kratom in the crosshairs at different times.

The good news is that the measure also mentions “the federal government or any department or agency thereof.” So while opponents of kratom regulations remain cautious over where things stand with regulatory agencies, Kentucky’s law would also codify a federal Kratom Consumer Protection Act, should Congress make it a law.

That amendment was adopted by the Kentucky Senate, and passed 38-0, to send the new bill back to the House. It was brought to the floor of the House the day after it passed the Senate. Despite one vote switching to a ‘nay’ due to the amendment, the bill again passed the House with overwhelming support.

On April 4, Gov. Bashear signed the measure into law.