Inside Plan to Bring Kratom Consumer Protection Act to Colorado

A look behind the counter at Lakewood's Clean Kratom Wellness Center.
A look behind the counter at Lakewood's Clean Kratom Wellness Center. Courtesy of Clean Kratom Wellness Center
Kratom, a popular organic substance of Southeast Asian origin, remains a controversial substance thanks to warnings from the federal Food and Drug Administration and the City of Denver, which issued a human-consumption prohibition in 2017, as well as questions about safety and claims that the herbal pain reliever is as addictive as the opioids many users say it helped them stop taking.

The burgeoning U.S. kratom industry has responded by fighting back against alleged demonization of the product in the media while working behind the scenes on legislation designed to regulate it in ways similar to medical marijuana. Versions of the so-called Kratom Consumer Protection Act have been passed in four states — Arizona, Georgia, Nevada and Utah — and Mac Haddow, senior fellow on public policy for the American Kratom Association, reveals that plans are under way to introduce it in Colorado during the 2020 legislative session.

"We are currently working with a couple of Colorado legislators," Haddow says. "We don't have a commitment from them yet, but we're hoping we will in the next few weeks. And we recently met with the governor's office about the Kratom Consumer Protection Act, too."

The office of Colorado Governor Jared Polis confirms that staffers did indeed sit down to talk about the act with proponents. These sorts of conversations are commonplace on a range of issues and shouldn't be interpreted as an endorsement of the act, his representatives stress. But as Haddow notes, during his tenure as a member of Congress, Polis was among seventeen lawmakers to sign a 2017 letter to the FDA asking that its kratom cautions be lifted.

The agency didn't heed Polis's request, and in recent years, as the AKA documents on this page of its website, six states (Alabama, Arkansas, Indiana, Rhode Island, Vermont and Wisconsin) plus Washington, D.C., have banned kratom outright. Likewise, other counties and municipalities, such as Denver, enacted restrictions of their own.

In response, Haddow says, "we took on proposed bans in fourteen states, and we won in all of them. But we realized that was like playing whack-a-mole. So we decided to put together a framework around the sale of kratom products so that we could protect consumers from adulterated products."

Utah "was the first state to take it on," he continues — and the measure, which became law earlier this year, "says every kratom distributor has to register with the state that they're selling a kratom product. It says they have to submit a lab analysis of the products they propose to sell from an independent lab that meets federal requirements. It says the products can have no greater than the alkaloid content that shows up in the natural plant. It says you have to manufacture it according to good manufacturing standards and you can't add any deleterious ingredients to the product — and you have to list all the ingredients on the package, so people know what they're getting and what the serving size is. And it's also recommended not to sell it to anyone under eighteen, even though it doesn't give you a high or a euphoric feeling unless it's been adulterated."

Haddow chalks up the signing of the act in Utah, as well as in Arizona, Georgia and Nevada, to "legislators getting a chance to look at the science within a policy framework," and he points to positive signs in several other states. "In Oregon, the act passed the judiciary committee unanimously, but when it went on to the ways and means committee, it got blended with a couple of other bills and died before action could be taken. But it's going to be back in February, and there's broad support for it."

In addition, Haddow and his fellows are lobbying on behalf of the bill in Rhode Island and Wisconsin in the hopes of overcoming their bans — and he reports progress on both fronts. "In Rhode Island, we had a meeting with the state health director, who's opened up the process to review their ban. And in a hearing in Wisconsin, the Senate health committee reviewing the ban opened up a bill that would replace the ban with a regulatory authority."

Could Colorado be the next state to pass the act? Haddow is very optimistic, "because the science resonates in terms of the potential beneficial effects."

Continue to read the blueprint for the Kratom Consumer Protection Act.

click to enlarge A customer makes a purchase at Clean Kratom Wellness Center. - COURTESY OF CLEAN KRATOM WELLNESS CENTER
A customer makes a purchase at Clean Kratom Wellness Center.
Courtesy of Clean Kratom Wellness Center

A bill to regulate the preparation, distribution, and sale of kratom products; to prohibit the preparation, distribution, and sale of adulterated or contaminated kratom products; to prescribe fines and penalties and allow remedies; and to provide for the powers and duties of certain state governmental officers and entities.

Sec. 1.
This act shall be known and may be cited as the "Kratom Consumer Protection Act."

Sec. 2.
As used in this act:
(a) "Dealer" means a person that sells, prepares, or maintains kratom products, or advertises, represents, or holds itself out as selling, preparing, or maintaining kratom products. Dealer includes, but is not limited to, a manufacturer, wholesaler, store, restaurant, hotel, catering facility, camp, bakery, delicatessen, supermarket, grocery store, convenience store, nursing home, or food or drink company.
(b) "Department" means the department of [INSERT NAME OF STATE AGENCY OR DEPARTMENT] (c) "Director" means the director of the department or his or her designee.
(d) "Food" means a food, food product, food ingredient, dietary ingredient, dietary supplement, or beverage for human consumption.
(e) "Kratom product" means a food product or dietary ingredient containing any part of the leaf of the plant Mitragyna speciosa.

Sec. 3.
(1) A dealer that prepares, distributes, sells, or exposes for sale a food that is represented to be a kratom product shall disclose on the product label the factual basis upon which that representation is made.
(2) A dealer shall not prepare, distribute, sell, or expose for sale a food represented to be a kratom product that does not conform to the disclosure required under subsection (1).

Sec. 4.
A dealer shall not prepare, distribute, sell, or expose for sale any of the following:
(a) A kratom product that is adulterated with a dangerous non-kratom substance. A kratom product is adulterated with a dangerous non-kratom substance if the kratom product is mixed or packed with a non-kratom substance and that substance affects the quality or strength of the kratom product to such a degree as to render the kratom product injurious to a consumer.
(b) A kratom product that is contaminated with a dangerous non-kratom substance. A kratom product is contaminated with a dangerous non-kratom substance if the kratom product contains a poisonous or otherwise deleterious non-kratom ingredient, including, but not limited to, the substances listed in section [INSERT THE RELEVANT LOCATION OF THE STATE’S CONTROLLED SUBSTANCES LIST].
(c) a kratom product containing a level of 7-hydroxymitragynine in the alkaloid fraction that is greater than 2% of the alkaloid composition of the product.
(d) a kratom product containing any synthetic alkaloids including synthetic mitragynine, synthetic 7-hydroxymitragynine, or any other synthetically derived compounds of the kratom plant.
(e) any kratom containing product that does not include on its package or label the amount of mitragynine and 7-hydroxymitragynine contained in the product.

Sec. 5.
A dealer shall not distribute, sell, or expose for sale a kratom product to an individual under 18 years of age.

Sec. 6.
(1) A dealer that violates section 3(1) is subject to an administrative fine of not more than $500.00 for the first offense and not more than $1,000.00 for the second or subsequent offense. Upon the request of a person to whom an administrative fine is issued, the director shall conduct a hearing in accordance with the [INSERT THE RELEVANT CODE SECTION].
(2) A dealer that violates section 3(2), (4), or (5) is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $500.00, or both.
(3) A person aggrieved by a violation of section 3(2) or (4) may, in addition to, and distinct from any other remedy at law or equity, bring a private cause of action, in a competent court of jurisdiction, for damages resulting from that violation, including, but not limited to, economic, noneconomic, or consequential damages.
(4) A dealer does not violate section 3(2) or (4) if it is shown by a preponderance of the evidence that the dealer relied in good faith upon the representations of a manufacturer, processor, packer, or distributor of food represented to be a kratom product.

Sec. 7.
The department shall promulgate rules for the administration and enforcement of this act under the [INSERT THE RELEVANT SECTION OF THE STATE CODE], including, but not limited to, the format, size, and placement of the disclosure label required under section 3(1) and the information that must be included in the disclosure.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts