American Herbal Products Association (AHPA) expresses concern about DEA using emergency scheduling authority to temporarily classify herb as schedule I substance

The American Herbal Products Association (AHPA) sent a letter to the U.S. Drug Enforcement Agency (DEA) urging the agency to reconsider using its emergency scheduling authority to temporarily place constituents of the herb kratom into schedule I of the Controlled Substances Act (CSA).
Lawmakers in the House and Senate have also urged the agency to delay the emergency action. On Monday, more than 50 representatives signed letters to the DEA and Office of Management and Budget (OMB) and today, senators sent two more letters to the DEA.
“The use of this emergency authority for a natural substance is unprecedented, so it is important to determine whether the circumstances here necessitate a jump to Schedule I,” states a letter to DEA that was signed by nine senators, including Orrin Hatch (R-UT).
AHPA’s letter to DEA expresses support for the appropriate application of this emergency scheduling authority, but notes that the 20 substances currently listed in schedule I that are subject to temporary emergency scheduling tend to be synthetic compounds, many of which are commonly known as “designer drugs” and are produced and marketed with no other purpose than as hallucinogens, illegal stimulants, and similar unlawful uses to “get high.”
None of the substances currently listed (or to the best of AHPA’s knowledge, ever listed) in schedule I through the temporary listing mechanism is a simple herb, and DEA’s temporary placement of mitragynine and 7-hydroxymitragynine in schedule I will have the effect of placing kratom leaf itself on schedule I, alongside other drugs like PCP and Ecstasy.
“AHPA urges DEA not to promulgate a final order temporarily scheduling mitragynine and 7-hydroxymitragynine into schedule I and to withdraw its August 31, 2016 Notice of Intent,” AHPA’s letter to DEA states. “Instead, AHPA asks that DEA: 1) consider the many comments that are being filed to this Docket by various organizations, and 2) initiate the regular scheduling process for these substances, if, in fact, warranted.”

The CSA declares that a temporary scheduling determination is not subject to judicial review, an extraordinary provision that has been upheld by the Supreme Court. In addition, the Notice of Intent makes clear DEA’s position that the temporary scheduling decision is not subject to the Administrative Procedure Act, the Regulatory Flexibility Act, or the Regulatory Planning and Review Executive Order. This is also extraordinary in present day regulatory systems. DEA has also concluded that temporary scheduling does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

“If these positions are valid, such unfettered discretion to criminalize conduct and effectively obstruct the availability of historically marketed items of commerce must be exercised sparingly and with great care for the legitimate interests of affected persons,” AHPA’s letter states.


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