CALIFORNIA AUTHORITIES SEIZE $5 MILLION IN KRATOM PRODUCTS AS PART OF RECENT CRACKDOWN

Despite no new laws or regulations being passed, authorities in California are using vague warnings against kratom to take direct action against retailers, and now advocates are sounding the alarm on this new trend before it spills over into other parts of the country. 

California authorities have seized over $5 million worth of kratom products in the last month as part of a wide-ranging enforcement action supported by the California Department of Public Health (CDPH). What started as an enforcement action “pending further regulatory actions” has escalated into CDPH declaring all kratom products illegal, in large part due to the inability of the state legislature to pass kratom regulations in the state. That gap has left small business owners and kratom consumers bearing the brunt of the gray area in state law. 

Authorities have seized the products and placed red tags on the shelves that include handwritten notes claiming “kratom” as the reason for taking the products, according to reporting by SFGATE. Advocates in California said that the enforcement actions have targeted more than 20 stores in six cities.

In the wake of those actions, CDPH put out a formal news release declaring all kratom products illegal and highlighted the specific threat of synthetically manufactured products with enhanced amounts of 7-hydroxymitragynine (7-OH). The release does not cite a California law on kratom, nor does it clarify the authority to enforce its de facto ban in the state. 

While there isn’t a law directly addressing kratom, CDPH is relying on a part of the state code about food additives to target kratom. 

That law reads: “Any added poisonous or deleterious substance, or any food additive, pesticide chemical, preservative, or color additive, shall be considered unsafe for use with respect to any food unless there is in effect a regulation adopted…that limits the quantity and the use, or intended use, of the substance to the terms prescribed by the regulation.”

The heavy-handed approach by CDPH has caused advocates to sound the alarm about a “massive overreach” and has urged supporters of kratom to reach out to California lawmakers in an attempt to counteract the actions taken by the department. Advocates are hoping that kratom consumers can share their personal stories and urge CDPH to “follow the law and let the legislature appropriately regulate safe kratom products.” 

“The FDA has distinguished between natural kratom and synthetic products, so why isn’t the California DPH?” said the news alert posted by the American Kratom Association (AKA). 

Lack of State-Level Regulation

California lawmakers have made multiple attempts to regulate kratom, and specifically target products with elevated levels 7-OH. The most recent attempt passed the State Assembly by a vote of 76-0, but stalled out in the state senate. Instead, CDPH is now using outdated guidance from the FDA to make wide-ranging claims without specific state laws that pertain to kratom products. 

In the past, the FDA has clarified that kratom is not an approved dietary ingredient per the agency. More recently, the FDA has targeted 7-OH and announced its intent to support making 7-OH a Schedule I substance at the federal level, while creating a carve-out for natural kratom in a clear differentiation between the two products. The FDA has yet to update its guidance on the plant, even though leadership in the agency specifically mentioned that natural leaf kratom is no longer a target of the federal regulator. 

Still, that lack of approval by the FDA is the basis for CDPH targeting kratom products in the state.

Mac Haddow is a senior fellow with the AKA and has been at the forefront of advocating for state-level regulations, commonly referred to as Kratom Consumer Protection Acts (KCPA). During an update webinar hosted on the AKA’s YouTube channel, Haddow explained that California’s inability to pass its own KCPA has led to this loophole that allows the state to crack down on retailers. 

“The interesting way that California law is constructed gives a pathway for the Department of Health to rely upon a pronouncement by the FDA to go after kratom,” Haddow said. “We’ve been fighting for two and a half years to get them to stand down. 

Haddow also said that he believes updated FDA guidance could help in the fight for more reasonable regulation surrounding kratom. 

“We’ve informed the FDA that the information that is contained on the ‘FDA and Kratom’ web page really needs to be substantially modified or taken down because it’s being used by these enforcement agencies at the state and local levels in order to do something that was never intended by the FDA,” Haddow said. 

Reducing the Regulatory Burden

As part of the hearings surrounding a past attempt to pass a KCPA in California, Haddow testified before a committee and said he was approached by a staffer following that meeting. The staffer provided Haddow with the regulatory enforcement budget that was proposed alongside the KCPA. 

“The amount of money they were asking for was astronomical,” Haddow said. “It appeared that this is one of those cases where the management of the health department saw an opportunity…for more money and laboratories and other things.” 

Due to those regulatory burdens, the state’s attempt at a KCPA has been defeated in multiple legislative sessions, leaving the industry in a regulatory gray area that allows for these heavy-handed actions by CDPH. Now, Haddow is hoping they can find a way to properly target 7-OH and create regulatory structures for natural leaf kratom before these types of actions spread to other areas of the country that have yet to regulate the plant. 

Haddow’s comments came after a similar action was taken at the local level in Albuquerque, New Mexico. Using the same FDA guidance, Albuquerque Environmental Health Deputy Director Mark DiMenna told a local news station that the FDA’s designation “means (kratom) can’t be used as a food or food additive.” 

That logic is why the city recently sent notices to businesses that any product containing kratom should be removed from shelves. Again, there is no law specifically mentioning kratom (New Mexico has no state-level regulations). Rather, the city is using a wide-sweeping regulation against defying health orders to threaten potential financial penalties for businesses that continue to sell kratom. 

DiMenna acknowledged the complexity of the situation and the developing science around kratom, but said it will take direct regulation of the plant to override the city’s recent actions against retailers. 

“It’s unlikely that Kratom itself is that big of a problem if it were better regulated,” DiMenna said. “So we’re not necessarily looking for a long-term prohibition if we could find a way to better regulate it so labeling and manufacturing standards are met better.”