top of page
Search
Laboratory bench with dried botanical leaf material, blank vials, a brass balance scale, and plain dark tablets, charcoal with copper accents

DEA's new 7-OH threshold notice is not a kratom leaf ban

Chris Girard
Oct 14
5 min read

DEA filed a new kratom notice on Friday, October 9. It's scheduled to publish in the Federal Register on Wednesday, October 14.

You're going to see it called a kratom ban. It's not.

You're going to see "takes effect November 13." It doesn't. Not on that date, and not on its own.

And you're going to hear "under 1 milligram is legal now." Careful. That one's going to hurt somebody.

What actually happened

On October 8, HHS sent DEA a new recommendation. Same day, DEA Administrator Terrance Cole signed a notice of intent. It went on public inspection October 9.

The notice says DEA intends to issue a temporary order putting two kratom-related alkaloids in Schedule I: 7-hydroxymitragynine, the 7-OH you've seen behind gas station counters, and mitragynine pseudoindoxyl, which you'll see written as MP or MGPI.

But only above a line. Here's the line, as DEA quotes HHS. Either substance alone, or both combined if both are present, goes in Schedule I when:

(A) it's greater than 1 mg per gram for solids (powders, capsules, other solid forms), or greater than 1 mg per milliliter for liquids, OR

(B) the mass of mitragynine divided by the mass of 7-OH, MP, or the two combined is less than 100.

That's an OR. Remember that.

This notice replaces DEA's July 7-OH notice. That one set the line at 0.050 percent, half a milligram per gram, and in some products 1 mg per article. DEA is withdrawing it. Those numbers are dead.

DEA says it intends to issue the new order "as soon as possible" after 30 days from publication. Publication is October 14. By my math, the earliest an order can publish is around November 13. That's my computation from the notice, not a date DEA printed on the page.

What hasn't changed

Mitragynine pseudoindoxyl is Schedule I right now. Today.

DEA's August 26 temporary order put MP, MGM-15, and MGM-16 in Schedule I with no threshold at all. DEA says that order stays in effect until it expires or until the new order publishes and the old one is withdrawn. MGM-15 and MGM-16 get their own re-notice in a companion document, no change.

So for MP, the new threshold is actually a loosening. It just isn't here yet. Until then, any amount counts.

Three ways people will misread this

"DEA banned kratom." No. DEA says it's using a threshold because trace amounts of 7-OH and MP have reportedly been found in some botanical kratom. HHS Secretary Kennedy called it drawing "a clear line between natural kratom" and enhanced products. Mitragynine itself isn't on the list. And none of this is an order yet. A notice of intent tells you what DEA plans to do. The order is what does it. Nothing changes for 7-OH until that order is printed in the Federal Register. That's when it takes effect, not on a date in a headline.

"Under 1 mg per gram means I'm legal. Or safe." Wrong twice. First, read the OR. You have to clear both prongs. Say a gummy tests at 0.8 mg per gram of 7-OH and 40 mg per gram of mitragynine. Under the 1 mg line, sure. But 40 divided by 0.8 is 50. That's under 100. Schedule I. Second, DEA wrote, twice, that nobody should infer below-threshold product is "safe for consumption," and that DEA "still views kratom" and both main alkaloids "as drugs of concern." That's DEA telling you where it's still looking.

"Federal line means federal rules. My state follows DEA." No. DEA's notice says it "does not preempt more restrictive state law." DEA's own summary of state law lists states that already prohibit 7-OH outright and others that cap it by share of total alkaloids. By DEA's count, Mississippi caps 7-OH at 1 percent of total alkaloids or 0.5 mg per container. That's DEA describing state law, not the state statute itself, so pull your state's actual text. But if your state's line is tighter, the federal threshold doesn't save you there.

And one more, because it's all over X: "we have 30 days to comment." There's no comment period. DEA says the APA's notice-and-comment rules don't apply to an 811(h) temporary order, and temporary orders aren't subject to judicial review. People can still lobby. There's just no docket to file in.

What I'd do this month

Pull every COA for every kratom SKU you make, carry, or white-label. Lot by lot. Not one sample from last spring.

Check what the COA actually quantifies. You need three numbers: mitragynine, 7-OH, and MP. A COA that reports mitragynine and nothing else can't tell you where you stand on this test.

Do the conversion. 1 mg per gram is 0.1 percent. If your COA says 7-OH at 0.15 percent, you're over.

Run the ratio. Mitragynine divided by 7-OH plus MP. Under 100 fails, even if prong A passes. Put both numbers on the lot record.

Ask your lab three questions. Does it test for MP, not just 7-OH? Is its quantitation limit low enough to put a real number on a trace result, not just "detected"? And does it hold the DEA registration it needs to handle Schedule I samples? DEA's notice covers anyone who conducts "chemical analysis" with these substances. For MP, that's already true.

If you sell concentrated 7-OH or MP products, the plan isn't relabeling. It's an exit plan and a call to licensed counsel before the order publishes. After it does, handling above-threshold product is Schedule I conduct. That's a defense lawyer's job, not a consultant's.

And check your state. The federal line is the floor, not the ceiling.

What I expect next

This part is my read and my prediction. It isn't law, and I could be wrong on the timing.

I expect DEA to publish the temporary order within days of November 13, not weeks. It said "as soon as possible," and it's been pushing on 7-OH since July. The American Kratom Association, which sued over the August MP order, publicly applauded this one. Behavioral Wire reports the court stayed that case through November 13. Trade press, not law, but it tells me nobody's lined up to slow this down.

I expect blenders to start chasing the ratio. Add mitragynine, keep 7-OH just under 1 mg per gram, call it compliant. Federally, a product that truly clears both prongs falls outside this order. But DEA already told you it doesn't consider below-threshold product safe. I'd expect states, and enforcement, to look hardest at products built to the edge of the line.

And I expect the COA to become the whole fight. When the test is a ratio, your paperwork is your product. A lab result with no MP number, or a "detected" instead of a value, isn't going to carry you.

One notice. Two prongs. Zero comment period.

If you want a second set of eyes on your kratom COAs, your lab's test panel, and which SKUs land on which side of the line before the order publishes, reach out to us at https://www.thynk.guru/contact-us. And if tracking mitragynine, 7-OH, and MP numbers lot by lot is the headache, that's the kind of work https://thynkflow.io is built for.

Disclaimer: This post is from Thynk Industries, a compliance and operations consultancy, and is for general information only. It is not legal advice, and Thynk Industries is not a law firm. Reading it doesn't create an attorney-client relationship. If you handle products that may be above this threshold, talk to a licensed attorney about how the Controlled Substances Act and your state's law apply to your own products and inventory.

 
 
 

Comments

bottom of page