KRATOM REGULATION STALLS IN HAWAII SENATE AFTER PUSHBACK ON WORDING

Hawaii’s tropical climate makes it a unique prospect in the American kratom market. 

Unfortunately for consumers and potential producers of the plant, the legislature is currently going through the growing pains that come with advancing kratom policy at the state level. 

A pair of bills were introduced in Hawaii this session aiming to establish a regulatory framework for kratom. It’s a different approach than the 13 states that have passed similar regulatory structures known as Kratom Consumer Protection Acts (KCPAs), leading to scrutiny from some advocates while others offered to help legislators work toward a better version of regulation. 

With both bills stalled out in the process it appears kratom consumers and sellers will continue to operate in a legal blind spot as lawmakers work through the kinks of establishing a regulatory structure for the supplement. 

Sen. Ron Kouchi introduced Senate Bill 463 amidst and ongoing discussion in the state around kratom’s safety. The bill has some similarities to KCPAs that have passed in other states, but the differences in the language and the legal burden created by the bill created issues by the time the measure had it’s committee hearing. 

The parts of the bill that were familiar centered on product labeling and restrictions on specific products: Bans on synthetic additives, adulterants a limit for the potency of products labeled as kratom. Under the proposed bill, labels would be required to contain warnings similar to other states and instructions for safe consumption of the products. 

Understanding the Bill

What was different about this measure were the burdensome regulatory requirements and specific language that is unique to the proposed kratom regulation. 

That language includes a ban on mixing kratom products with substances “known to inhibit key cytochrome P450 enzymes, including CYP3A4 and CYP2D6, unless such specific product mixtures are scientifically validated as safe under the intended conditions of use and are specifically permitted by the department.” The bill also calls for regulatory fees, a licensing program for kratom products and sellers and other specific language on enforcement about seizure and destruction of kratom products. 

After passing its first reading, SB 463 was steered to a pair of committee stops for further consideration. Up first was a joint hearing in front of the Committes for Health and Human Services (HHS) and Commerce and Consumer Protection (CPN) on Feb. 11 that included public comment.   

A pair of state agencies opposed the bill. Unsurprisingly, the state’s Department of Health provided written testimony opposing kratom regulation, and Matthew Carrano from the department showed up to explain. 

“Kratom is not something that we understand well yet, we don’t know what safe levels are,” Carrano said, “so a regulatory program we feel is premature at this time.”

The Attorney General’s office also had some concerns with the bill, but this time for reasons that are drastically different from other state’s early attempts at regulating kratom. Deputy Attorney General Wade Hargrove testified that the regulatory mechanisms involving licensing and product seizures could run into legal issues should the bill be adopted. Rather than trying to write new processes, suggested the law would work better if it used the existing legal framework to impose regulatory measures on businesses and individuals who violated the proposed law. 

“There’s a variety of enforcement mechanisms and penalties,” Hargrove said. “We would suggest maybe working with the committee to try and incorporate the ideas or the substance of the enforcement into the architecture that is already there so that there are no unnecessary conflicts.” 

Advocates Split on Support

There was also a clash among advocates in the testimony on SB 463. 

Some advocates spoke out against the proposed regulatory structure as written, but said they would support a law that removed overly burdensome language, such as the specific ban on product mixtures. Others testified against that specific language, but still supported the bill as it was written due to the importance of kratom in the region. 

Mac Haddow, a legislative fellow with the American Kratom Association, testified over Zoom about the Food and Drug Administration’s stance on botanical supplements, highlighting how the FDA has also targeted supplements native to Hawaii. Haddow was referring to kava, a plant native to Hawaii that is also popular across the United States. 

“The FDA is simply being unfair to these botanical products,” Haddow said. “Today, Hawaii is positioned to become a major supplier of kratom raw materials… but the FDA refuses to regulate kratom.”

The back and forth included more support for the measure than the opposition and highlighted the support for kratom across various parts of the industry, including consumers. When testimony was complete, the committee had no questions for those who attended the public hearing. The following morning, Sen. Jarrett Keohokalole reconvened the CPN to consider the bill. 

With the various concerns about the language and scope of the bill, Keohokalole spoke in favor of a recommendation to defer the bill. 

“There are mixed opinions about this measure, I don’t think that it’s ready, so no objections to the recommendation to defer,” Keohokalole said.  

Due to that recommendation, the bill has not been heard by the Senate Judiciary Committee, effectively killing the bill in the process. The companion bill in Hawaii’s House of Representatives, HB 717, has yet to be read for the first time. Hawaii’s legislative session ends at the end of April.