A kratom plant, which is native to Southeast Asia. (Photo by Wikimedia user ThorPorre via Courthouse News)
BALTIMORE (CN) — Kratom industry insiders were simultaneously scrambling and celebrating Wednesday as the federal government banned three related opioid derivatives while signaling to the industry’s powerful lobbyists it would not enforce the ban against some of them.
“The Justice Department is acting before these dangerous compounds become a broader threat,” Attorney General Todd Blanche said in a press release announcing the temporary prohibition of mitragynine pseudoindoxyl (also known as MGPI), MGM-15, and MGM-16, three powerful kratom plant derivatives.
“This action is directed at deliberately manufactured and concentrated opioid products, not traditional botanical kratom,” Blanche continued. “The published scientific literature has not established MGPI as a naturally occurring kratom alkaloid. However, scientific and analytical questions remain about whether MGPI may be reported at incidental trace levels in some botanical products as a result of processing, storage or analytical conditions.”
Blanche said the Department of Justice will use its enforcement discretion only when incidental trace amounts of MGPI are found in a product otherwise considered botanical kratom. The new policy doesn’t change MGPI’s status as a controlled substance.
Kratom is a tree that grows in Southeast Asia. Its leaves, when eaten or crushed and brewed into tea, have a mild psychoactive effect. Proponents say it helps with pain relief and to stave off withdrawal symptoms when trying to quit opioids.
But the lightly-regulated botanical also causes addiction in some cases, and heavy use, can result in seizures and death. The industry, which claims to serve more than 15 million users, has faced a multitude of wrongful death lawsuits in recent years while researchers have studied the plant to see what makes it do what it does.
MGPI, for example, has been found to be as much as 20 times stronger than morphine.
Kratom has been banned for importation since 2017, but once smuggled inside the border it’s legal to sell and use in most states. The industry’s lobbyists have spent the past decade trying to persuade the Food and Drug Administration to regulate it as a food, but lately the industry has split into two factions. A traditional faction favors “pure leaf” products, including liquid tinctures they say are natural and thus safe, and a newer group pushing more chemically refined or altered products that are stronger and often better tasting, typically containing at least one of the three newly scheduled substances and/or 7-hydroxymitragynine (7-OH), a powerful analogue which occurs naturally in kratom at low concentrations.
Those groups have advocated for the more potent alkaloids to remain legal. The 7-HOPE Alliance, which favors 7-hydroxymitragynine, held an online meeting on Aug. 26 to rally its followers to again flood the FDA with testimony in favor of 7-OH before the agency schedules that compound as well.
Kratom leaf lobbyists such as Mac Haddow of the American Kratom Association have painted these upstarts as bad actors in the kratom world. His organization celebrated the Justice Department’s scheduling announcement, pointing to its pledge to leave “natural leaf” kratom products alone:
“This distinction is exactly what the AKA has been fighting to make clear to policymakers across the country: natural kratom leaf should not be punished because of dangerous, chemically manipulated products being marketed as ‘kratom,’” Haddow said.
But recent developments in a Texas wrongful death lawsuit cast doubt on the supposed distinction between “natural leaf” kratom and its potent market rivals.
“This is a major problem though because the industry just realized or attempted to conceal the fact that the pseudoindoxyl is very prolific in all types of kratom products” said Talis Abolins, a lawyer with Mctlaw in Seattle who has pressed multiple wrongful death lawsuits against kratom producers.
Abolins said his firm hired a San Francisco laboratory to test kratom left in a bag that killed Dustin Hernandez, a Texas hotel clerk whose death was captured by a hotel’s security camera. Unnoticed at first, the results showed the product contained MGPI.
The defendants in that case are an array of companies tied to OPMS (Optimized Plant Mediated Solutions), a major funder of the American Kratom Association and early cosigner of the nonprofit’s “good manufacturing process” pledge, an industry self- regulation meant to signal its products are uncontaminated. When confronted with the findings, the defendants’ expert told the court selling a bag of kratom with that amount of pseudo in it would be “fraud.”
The defendants then claimed the bag had been tampered with, but Abolins unveiled more tests on different “pure leaf” products from OPMS, and they were all laced with the MGPI.
“Did they know all along?” Albonis asked.
Industry insiders responded to the court with new studies saying that, contrary to what had been thought, MGPI was in fact “natural” after all, and could be found in bags of ground kratom leaves, just like its better-known and marketed cousin, 7-OH.
But this discovery has not reached all researchers.
“We have not seen mitragynine pseudoindoxyl in both leaf-based powder and capsule products,” Abhisheak Sharma, a kratom researcher at the University of Florida, said in an email. “However, its traces were found in liquid kratom products. Most probably, the use of acids for taste in liquid products could be responsible for this conversion.”
However MGPI and other powerful opioids get into kratom products, the industrial lobby’s efforts to keep it there continues, as do efforts to keep 7-OH off the federal government’s Schedule 1.
In an Aug. 26 livestream, Jackie Subic, executive director of the 7-Hope Alliance celebrated the more than 30,000 comments her people made to the FDA’s website: “We killed it, guys,” she said. “We killed it.”
