Rep. Johnson applauds DEA decision to withdraw kratom ban

Agency will now hold public comment period until Dec. 1

LITHONIA, GA – This week, the U.S. Drug Enforcement Agency (DEA) reversed its decision to ban the use of kratom, a plant that researchers say could help fight the opioid epidemic.

On Sept. 30, Congressman Hank Johnson (GA-04) – along with colleague Mark Pocan (WI-02) – penned a letter to U.S. Attorney General Loretta Lynch objecting to the DEA’s hasty decision to classify kratom as a Schedule 1 substance without first going through its normal classification and rulemaking process.

Notice of the DEA withdrawing its intent to ban the drug will appear in the Federal Register today.

“I appreciate Attorney General Lynch listening to our concerns,” said Rep. Johnson. “And we appreciate the DEA’s desire to protect the American people from potentially harmful substances. In this case though, the DEA overstepped its authority and went straight to ban kratom without proper review and studies and without defending its view to Congress.”

Kratom is a plant in the coffee family found primarily in Southeast Asia. Many consumers use kratom to treat pain and wean themselves off more powerful, dangerous opioids. Researchers working with kratom say they are trying to develop a non-addictive painkiller alternative to powerful opioids. The Center for Disease Control (CDC) reports that opioids contributed to the deaths of more than 28,600 Americans in 2014.

The DEA will now open a public comment period until Dec. 1 and is asking the Food & Drug Administration (FDA) to fast-track “scientific and medical evaluation and scheduling recommendation” for the active chemical compounds in kratom.

Letter to AG Lynch

September 30, 2016

Honorable Loretta E. Lynch

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Dear Attorney General Lynch,

We are writing to object to DEA’s hasty decision to classify the drug known as Kratom as a Schedule I substance. In particular, we are troubled by the DEA’s irregular deviation from its classification procedure in order to list Kratom as a Schedule I substance. We call on you to stay the effective date of this proposed rule.

In order to schedule a drug, the DEA must undertake a rulemaking process, which involves consultation with the FDA, notice of the proposed rule in the Federal Register, and an opportunity for public comment and a hearing. Under this standard process, DEA must consider eight factors as part of its analysis, as listed in 21 U.S.C. § 811(c). However, in its decision to classify Kratom as a Schedule I substance, DEA instead utilized a statutory authority to temporarily bypass the rulemaking process as well as the notice and public comment period. However, under 5 U.S.C. § 705, an agency may postpone the effective date of an action when justice requires it. As the head of the Department of Justice, which oversees the DEA, we ask you to stay the effective date of this rule, so that the appropriate notice and public comment period may take place.

Congress granted DEA this authority in response to the emergence of “designer drugs.” Designer drugs are those newly invented or newly produced in laboratories and are designed to mimic the effects of scheduled substances while avoiding federal regulation. Kratom, though relatively new to the United States, does not fit this description. It is a natural substance that has been used in other parts of the world for centuries.

Furthermore, Congress granted DEA this emergency authority “to avoid imminent hazards to public safety.” While a recent CDC study does note the number of calls to poison control centers mentioning Kratom use has increased, the data does not indicate that Kratom was solely responsible for the calls. Without more concrete data and analysis, it is difficult to claim Kratom represents an “imminent hazard.” Access to improved data and further studies will now be impossible to gather should Kratom be scheduled as Schedule I substance.

We appreciate the DEA’s desire to protect Americans from potentially harmful substances. However, in this case DEA has overstepped its authority in a manner that is inconsistent with the intent of the statutory authority it was given by Congress. In effect, the DEA removed any opportunity for the agency to be held accountable for its decision making. If the DEA believes that Kratom is of notable detriment to Americans and wishes for it to be scheduled, it should follow normal procedure and rigorously defend its views to Congress, the FDA and the public. It is for these reasons you should stay the effective date of rule and allow for the appropriate notice and comment period to take place.

We thank you for your consideration and look forward to your timely response.

Sincerely,

Henry C. “Hank” Johnson, Jr. Mark Pocan

Member of Congress Member of Congress

###