Scheduled by Silence: How New Jersey Banned Three Drugs Without Deciding Anything

By Kemal Whyte, founder and CEO of Rebel X Brands.
Published 28 September 2026.

On Friday 25 September the Attorney General of New Jersey announced that three drugs had become illegal in her state. Nobody in New Jersey had to decide that. No committee heard evidence, no legislator voted, and no regulator published a finding, because the mechanism that did it only calls for a hearing if one official objects. A federal order was printed on 26 August. A statute gave that official thirty days to object. He did not. Thirty days later, on 25 September, the three compounds were controlled dangerous substances, and the state's announcement is the only public act by New Jersey in the sequence that I could find.

I want to be careful about what I am and am not arguing. I am not arguing the three compounds should be on shelves; they are potent synthetic opioids, two of them were sold at retail, and the Department of Justice describes the target of the order as "deliberately manufactured and concentrated opioid products". I said in print in August that the concentrated end of this shelf is my industry's responsibility, and these three are the far end of it. I am arguing something narrower and, I think, more uncomfortable: that the only kratom rule New Jersey has put in force this year, it put there by staying quiet, while the two things it could actually decide sit in committee eight months on. Silence is now the state's most effective regulatory instrument. That should worry people on every side of this.

The clock that ran without anyone touching it

The Attorney General's public alert is dated 25 September and says the compounds are illegal "starting today". Some of the coverage said the 26th, and so did Google's summary of it. The release did not. The date is arithmetic: the release gives the mechanism, "Under New Jersey law, if the federal government schedules a drug and the Director of the Division of Consumer Affairs does not object, which he did not in this case, that drug automatically becomes scheduled in New Jersey too." The statute gives the count.

The federal temporary scheduling order published in the Federal Register on 26 August 2026, "effective August 26, 2026, until August 26, 2028", placing "three 7-hydroxymitragynine-related substances (mitragynine pseudoindoxyl, MGM-15, and MGM-16)" in Schedule I. Thirty days from 26 August is 25 September, which is why the release says "starting today" on the 25th. Count the thirty days a little differently and you land on the 26th, which is where some of the coverage landed; I follow the release.

The statute doing the counting is N.J.S.A. 24:21-3(c), the "Authority to control" section of the Controlled Dangerous Substances Act, which the Division hosts as a PDF and which is readable at Justia. Here is the operative sentence in full, because it is the most important sentence in this column and the release paraphrases it rather than quoting it:

If any substance is designated, rescheduled or deleted as a controlled dangerous substance under federal law and notice thereof is given to the director, the director shall similarly control the substance under P.L.1970, c.226, as amended and supplemented, after the expiration of 30 days from publication in the Federal Register of a final order designating a substance as a controlled dangerous substance or rescheduling or deleting a substance, unless within that 30-day period, the director objects to inclusion, rescheduling, or deletion.

Read the verb. The director "shall similarly control". Not may, not after considering. The only way to stop it is an objection, and the section spells out what an objection costs. The director "shall cause to be published in the New Jersey Register and made public the reasons for his objection and shall afford all interested parties an opportunity to be heard", and meanwhile control "shall automatically be stayed until such time as the director makes public his final decision." An objection is an act. It has to be written, published and defended at a hearing. Not objecting requires nothing at all, and nothing at all is what happened. The same section, in subsection (a), lists eight factors the director "shall consider" when he controls a substance himself, among them "Its actual or relative potential for abuse" and "Its psychic or physiological dependence liability", and then requires that he "make findings with respect thereto". None of that applied here, because he did not act on his own initiative. He did not act. The law is written so that the absence of a letter has the same legal force as a finding, and that is precisely what it had.

What was scheduled, and what was said about it

The release is accurate about the instrument and loose about the frame, and I think the looseness is the story. The instrument first. Three named compounds are now controlled: mitragynine pseudoindoxyl, MGM-15 and MGM-16. The release says so plainly and adds the sentence the NJ.com headline skipped: "Natural kratom and other synthetic kratom-related compounds not scheduled will not be illegal in New Jersey as a result of this change in federal law." Then the frame. Attorney General Davenport: "We are issuing this alert to make the public aware that these substances will join heroin, LSD, bath salts, and other dangerous drugs on the list of Schedule I drugs banned in New Jersey." And: "Any individual or business found violating this ban could face criminal charges."

Both sentences are true of the three compounds. Neither is true of the leaf, and the release says so in its own body. Yet NJ.com ran the story the next day under a headline saying a supplement is now as illegal as heroin, with the body conceding that natural leaf is "not targeted by the ban". I do not blame the reporter; the frame came from Trenton. The Attorney General chose to announce three obscure synthetic compounds with the word "kratom" in the headline and "heroin" in the quote, and the effect is that a New Jersey shopper who read only the headline may now believe the plant is banned, a shopper who read the whole release knows it is not, and a shop owner has no idea which of the two is walking through the door. When the substance of a rule is narrow and its announcement is broad, the gap is where the confusion lives, and confusion is not a neutral outcome. It is who gets the phone calls.

There is also the matter of what a state chooses to add. The release carries language on the plant, some of it taken from the DEA's kratom fact sheet: consumption "can lead to psychotic symptoms and psychological and physiological dependence"; products "may look like candy"; use "may lead to tolerance, physical dependence, and potentially to opioid addiction". The Acting Director's own line is "Consumers should utilize utmost caution with all kratom and related products". All kratom. The instrument reaches three synthetic compounds. The language reaches the whole category. If the Division believes the whole category warrants Schedule I, subsection (a) gives it the power to say so and the duty to weigh eight named factors first. It has not done that. It has scheduled three compounds by silence and warned about everything else by press release, which is the worst of both: the reach of a decision without the accountability of one.

The silence inside the silence

A federal order comes with a federal explanation. The Department of Justice press release of 25 August draws its own line: "This action is directed at deliberately manufactured and concentrated opioid products, not traditional botanical kratom." It goes further, and this is the part that matters to anyone who tests product for a living: the department "will exercise enforcement discretion when only incidental trace amounts of MGPI are confirmed in a product otherwise consistent with botanical kratom", while noting that "This policy does not create a legal exemption and does not change MGPI's status as a schedule I controlled substance." It also says the policy does not apply to MGM-15 or MGM-16, "or products containing manufactured, concentrated, fortified or intentionally added MGPI."

Why would trace amounts turn up in a botanical product at all? The Department's own answer is that nobody is sure: "The published scientific literature has not established MGPI as a naturally occurring kratom alkaloid. However, scientific and analytical questions remain about whether MGPI may be reported at incidental trace levels in some botanical products as a result of processing, storage or analytical conditions." Federal prosecutors looked at an open question and said, in effect, we will use judgment. New Jersey's release says nothing about it. Not that trace amounts will be prosecuted, not that they will not, not that the Division has considered the question. The federal statement is a Department of Justice policy about federal prosecution; it binds nobody in Trenton. So a New Jersey retailer holding a certificate that shows a botanical product at the limit of detection for a compound whose source nobody has settled now has a federal answer and a state blank. That is not an oversight a press release can fix later. It is what happens when a state controls a substance without ever having to think about it.

Meanwhile, the two actual decisions are eight months old

Here is what makes the silence remarkable rather than merely procedural. New Jersey's legislature has had two kratom decisions in front of it since 13 January 2026, and the state's year of kratom regulation has consisted of neither of them.

The first is S301, Senator Shirley Turner's bill, whose synopsis is one line: "Classifies 7 Hydroxymitragynine as Schedule I drug." It would add "(24) 7 Hydroxymitragynine." to the state's Schedule I list, with penalties of "a crime of the second degree, if the act involved a quantity of one ounce or more; or a crime of the third degree, if the act involved less than one ounce." Its own statement concedes the present position: "Until the drug is scheduled under the federal act, 7-OH is not presently barred by federal law. It is also not presently barred by New Jersey law." On 16 March, New Jersey Monitor (Lilo H. Stainton) reported that "The state Senate health committee unanimously advanced legislation to add 7-OH, or 7-hydroxymitragynine, to New Jersey's list of Schedule I controlled substances". Senator Joe Vitale: "This is a dangerous drug. It's highly addictive." Senator Raj Mukherji, in the same hearing: "I still have some trauma about Schedule I, just from cannabis." An advocate, Michele Ross, warned: "People will die." That is what a decision sounds like. People said things on the record and were counted. Then, per the bill tracker, it was "Referred to Senate Budget and Appropriations Committee (on 03/16/2026)", and there has been no action since.

The second is S1384, the New Jersey Kratom Consumer Protection Act, sponsored by Senators Lagana and Bramnick, one from each party. It would ban sales to anyone under 21, cap 7-OH at two percent of the alkaloid fraction, prohibit "any synthetic alkaloids including synthetic mitragynine, synthetic 7-hydroxymitragynine, or any other synthetically derived compounds of the kratom plant", and require the mitragynine and 7-OH content on every label. It was "Introduced in the Senate, Referred to Senate Commerce Committee (on 01/13/2026)". No further action is recorded. I should say that a version of this bill is the position I have argued for on this site since August: synthetics out, leaf regulated at 21 and over, contents on the label. New Jersey had it written by January. Had it passed in the spring, section 4's ban on synthetic alkaloids would arguably have taken the two compounds actually on sale off New Jersey shelves before the federal order published, and shops would have had a state definition of "synthetic" to work to.

So the ledger for 2026 reads like this. A Schedule I bill that was debated, voted through one committee and then parked. A consumer protection bill with bipartisan sponsors that has had no recorded action since January. And a scheduling of three compounds that nobody debated, nobody voted on and nobody had to justify, which is the only one of the three in force. If you wanted to design a system in which the accountable route is always the slow one and the unaccountable route is always the fast one, you could not improve on it.

Why a seller is not celebrating a narrow ban

You would expect me to be relieved. The leaf is untouched, the instrument is narrow, my brands do not set out to make the three compounds and do not add them to anything. I am not relieved, for two reasons.

The first is that the same clock is already wound for the next order. The DEA's notice of 6 July proposed to schedule 7-OH itself above a threshold, and the order behind it has not published. When it does, 24:21-3(c) will start counting again, and unless the Director writes a letter within thirty days, a rule that reaches actual shelves, extracts and pressed tablets over an actual percentage, will arrive in New Jersey the same way this one did, by nobody doing anything. Nobody in Trenton will have decided what the threshold should be for New Jersey, whether the state's shops need a transition period, or what a retailer holding a certificate should do with it. The federal register will decide, and a director's inbox will ratify it by default. I would rather face a strict New Jersey rule that a New Jersey official had to sign than a federal one that arrives through a side door.

The second is who is lining up behind the silence. The National Association of Counties, in its note on the DEA's July notices, says that "Counties support federal, state and local efforts to regulate or prohibit kratom products." It adds that temporary scheduling "provides county law enforcement with additional tools". Regulate or prohibit; the counties are indifferent between them, and every county prosecutor in New Jersey now has a Schedule I listing to enforce that was never argued for in the state. That is a lot of enforcement discretion resting on a rule nobody had to justify. I have no quarrel with a sheriff removing MGM-15 tablets from a gas station. I have a quarrel with a legal architecture in which the next removal, of the next thing, needs no more justification than the last one did.

And I will say about these three what I said in August about concentrated 7-OH, because it is truer here. Two of the three are on shelves because people on my side of the counter made them into tablets, sold them in fruit flavors at gas stations and called them kratom; the third was scheduled before anyone found it in a product. The DEA's notice describes tablets marketed with "a wave of calm clarity" and a "fast-acting hit" and vendors warning their own customers about "dependence", "overdose" and "death". New Jersey's silence was easy to give because the products were indefensible. The industry made the decision unnecessary, and then it got a rule with no decision in it. We should not be surprised, and we should not pretend the silence was aimed at someone else.

Opinion: what deciding would look like

Three things, none of them radical.

The Division of Consumer Affairs should say what it thinks. Subsection (a) of the same statute exists so that a director who believes a substance belongs in a schedule can put it there after weighing eight named factors, and the record of that weighing is something a court, a legislator or a shop owner can read. If the Director believes, as the release implies, that "all kratom and related products" deserve "utmost caution", he has the power to open that process and the obligation to show his reasoning. If he does not believe it, the release should not say it. Either way, the state should also say plainly whether it intends to follow the Department of Justice on incidental trace amounts. A one paragraph guidance note would do. Its absence is not neutral.

The legislature should hear S1384. It is a bipartisan bill that has been in one committee since January and it does the things a rule for this category needs to do: an age line, a synthetic ban, a potency cap and a label that tells the buyer what is in the bottle. The state has already banned three synthetics by default; it could ban the rest by decision, and regulate what remains, before the next federal order does it for them. S301 is a harder argument and deserves to be had in the open, where it was being had in March before it stopped.

And this industry should stop treating a narrow ban as a reprieve. Every lot we ship should carry a certificate that names the three compounds and reports a result for each, because the New Jersey release is silent on trace amounts and silence is not a defense. The laboratory my companies use already runs a panel of mitragynine derivatives that names all three; our newer certificates carry it and the older ones predate it. I want it on every lot.

I keep the state by state picture on my intel page and the plain list of where the plant is actually illegal in my states column; New Jersey is not on that list, and the point of this piece is that it got somewhere adjacent without anyone deciding to put it there.

If you have a document that changes any date or quote above, send it and I will correct the piece at the top with your name on it. If the Director ever does publish an objection, a finding or a guidance note, I will quote it in full, and gladly. It would be the first thing the Division has decided about this all year.

Disclaimer: This article summarizes publicly available material as of 28 September 2026 and links to primary sources so you can check them. State and federal status can change on the day an order publishes; the status box at the top carries the date it was last checked. It is general commentary, not legal or medical advice, and no substitute for counsel in your jurisdiction or for a clinician. Sections marked as opinion are the author's own, and the author holds commercial interests in botanical brands. Nothing here is a health claim, and statements about botanical products have not been evaluated by the Food and Drug Administration.

Written by Kemal Whyte, founder and CEO of Rebel X Brands, Austin, Texas.