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North Dakota Rejected A Total Kratom Ban By One Vote, Then Adopted The Federal Threshold The DEA Has Not Issued

By The Kratom Council ·

A laboratory analytical balance with its glass draft shield open and a small dish of dried green leaf material on the weighing pan.

Gov. Kelly Armstrong signed House Bill 1628 on Friday, ending a special session he had called to ban kratom outright and did not get. The law he signed bans synthetic kratom derivatives, restricts natural leaf to buyers 21 and older, requires licensing and labeling, and places kratom behind the counter. It also does something no other state law this publication has examined has done. It writes the federal 7-OH threshold into state code, at the same number and the same denominator the Drug Enforcement Administration proposed in July and has still not issued.

One Vote

The session came down to a single vote. On Thursday each chamber passed its own bill by a lopsided margin, in opposite directions: the House approved HB 1628, the regulatory framework, 86 to 6, while the Senate approved Senate Bill 2408, a prohibition on kratom in all forms carrying criminal penalties that reached possession and ingestion, 46 to 1.

On Friday the chambers swapped. The House rejected the total ban 46 to 47, with one member not voting. The Senate then amended HB 1628 to fold in a ban on synthetic derivatives and passed the amended bill unanimously, and the House concurred, by a margin reported as 91 to 2. Armstrong signed it the same day.

Read against Thursday, the sequence is unusual. The Senate voted 46 to 1 for a total ban on Thursday and unanimously for a regulatory bill on Friday. The same body took both positions inside 24 hours, which suggests the Thursday vote was less a commitment to prohibition than a vote to keep a bill alive while the chambers worked out which vehicle would carry the session.

The Threshold Is The Story

As reported, HB 1628 limits 7-hydroxymitragynine in kratom plant material to 0.05 percent on a dry weight basis.

That is the federal number. The DEA's July 6 notice proposed placing 7-OH in Schedule I above a specified threshold, and set that threshold at 0.050 percent on a dry weight basis for botanical material. As of this publication's most recent check the threshold order has not published, so the federal standard exists as a proposal and nothing more. North Dakota has now enacted it as law.

The denominator matters more than it might appear. This publication has reported that state thresholds have generally not been comparable to the federal one, because they measure different things. Texas expresses its limit as a share of total alkaloid content rather than of dry plant weight, so a number under one standard tells you very little about the other and no honest conversion is possible without per-product math. North Dakota's figure does convert, because it is not a different standard. It is the same one.

The practical consequence is that a laboratory result written for the pending federal rule can be read directly against North Dakota law, and a product formulated to sit under the federal proposal sits under the North Dakota limit as well. For an industry that has spent two years tracking incompatible state numbers, that is a meaningful change, and it arrived from Bismarck rather than Washington.

The Same Three Compounds

The synthetic side of the law reaches the named derivatives directly. As reported, HB 1628 covers concentrated 7-OH along with MGM-15, MGM-16 and mitragynine pseudoindoxyl.

Those are the same three compounds the DEA placed in Schedule I on August 26, in the temporary order this publication covered when it took effect. North Dakota has now reached them under state law as well, which means conduct involving them is exposed to both state and federal authority rather than to the federal order alone.

The state law is also broader in one respect than the federal action was. The August 26 federal order scheduled the three analogs and did not reach 7-OH itself, which remains federally unscheduled while the threshold order waits. North Dakota's law reaches concentrated 7-OH now.

Behind The Counter, And A Gap Before Anything Is Sold

Two features of the law will matter to retailers more than the chemistry will.

The first is that kratom moves behind the counter. As reported, the law carries an over-the-counter clause requiring the assistance of a licensed seller to obtain kratom products, alongside the 21 and older purchase age and the labeling requirements. Licenses are issued by the attorney general, whose office estimated the licensing and testing program would cost the state close to 4 million dollars.

The second is timing, and it produces an outcome worth stating plainly. The ban on synthetic products took effect when Armstrong signed. Natural leaf is legal under the new law, but it will not be available in stores until the licensing rules are written and implemented. North Dakota has therefore legalized a category that currently has no lawful route to a shelf, and will stay in that position until the attorney general's office finishes the rulemaking. The emergency order that cleared the shelves in August has expired, and the framework meant to refill them does not exist yet.

The Governor Asked For More Than He Signed

Armstrong called the special session after declaring a public health emergency in early August and signing an order that removed kratom products statewide for 30 days. He addressed the Legislature asking it to prohibit kratom in all its forms. The chamber closest to that position gave him a total ban on Thursday and the other chamber killed it on Friday.

Speaking after the Legislature adjourned, Armstrong described the bill he signed as reasonable and realistic, and said that he and others had got about 90 percent of what they wanted. That is his characterization of the outcome, and this publication reports it as such rather than adopting it.

The American Kratom Association, which has been litigating against the DEA in federal court over the August scheduling action, issued a statement commending the Legislature for rejecting a total ban and passing what it described as consumer protection legislation. It is the first state outcome in this cycle the trade's principal advocacy organization has claimed as a win.

What Other States Will Read Into It

Two things in this result travel beyond North Dakota.

The first is that the distinction between the leaf and the compounds concentrated or synthesized from it survived a serious attempt to erase it, and survived narrowly. A sponsor amended a synthetics bill into a total ban, a chamber passed it 46 to 1, and it died by one vote in the other chamber a day later. Every jurisdiction now writing kratom rules, the federal government included, organizes its approach around that distinction. It held here, but the margin was one vote, and the record now shows how quickly a bill can be moved across the line by amendment.

The second is that a state has demonstrated it does not need to wait for the DEA to use the DEA's number. The threshold order has been pending since July. North Dakota did not wait for it, did not invent a competing standard, and did not adopt one of the incompatible measures other states have used. It took the federal figure as proposed and enacted it. Any legislature that wants to regulate concentration rather than ban a plant now has a template, and the template is already law somewhere.

Sources

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