Why Is Kratom Legal? Because Nobody in Washington Has Been Willing to Own the Decision

By Kemal Whyte, founder and CEO of Rebel X Brands.
Published 21 September 2026.

Kratom is legal in the United States because nobody has been willing to own the decision. That is the column. Not because a regulator weighed the evidence and found it acceptable, not because Congress voted, and not because the industry won an argument. The federal government has reached the point of deciding twice in ten years and stepped back both times, and the agency that has said the most about the plant has never once used the word that would settle it.

I sell this plant, so you will assume I am pleased about that. I am not, and by the end of this I hope to have shown you why a non-decision is worse for a serious operator than either verdict would have been. Every claim below is a document you can open, dated, and I have linked the instrument rather than the coverage wherever an instrument exists.

2016: six weeks from imminent hazard to never mind

On 31 August 2016 the DEA published a notice of intent to place mitragynine and 7-OH, "the main active constituents of the plant kratom", into Schedule I on an emergency basis. The finding underneath it was that scheduling was "necessary to avoid an imminent hazard to the public safety". The notice carried a letter from HHS, dated 18 May 2016, stating the department "has no objection". It cited 660 poison center calls over six years and more than 55,000 kilograms of kratom encountered at ports of entry. The order could take effect any time after 30 September.

It never took effect. On 13 October 2016 the DEA withdrew the notice, and the language of the withdrawal is the language this whole column is about:

Since publishing that notice, DEA has received numerous comments from members of the public challenging the scheduling action and requesting that the agency consider those comments and accompanying information before taking further action.

Then the sentence that has governed the legal status of this plant for a decade: "Mitragynine and 7-hydroxymitragynine therefore remain, as has been the case, noncontrolled substances under federal law." The docket on regulations.gov shows 23,236 comments. The notice promised that "Once DEA has received and considered all of this information, DEA will decide whether to proceed with permanent scheduling". That decision has not been made. An imminent hazard was declared, and then, after six weeks of letters, it was un-declared, and the agency that declared it has not said in public since whether it still believes it.

2018: the letter nobody saw for two and a half years

What happened next is the part I had wrong myself until I checked the dates for this piece, so I will be exact. After the withdrawal, HHS did what the DEA had asked and sent a scheduling recommendation, dated 17 October 2017, that mitragynine and 7-OH be permanently controlled in Schedule I. Then, on 16 August 2018, the Assistant Secretary for Health, Brett Giroir, wrote to the DEA and took it back. The public did not learn that until 28 January 2021, when the American Kratom Association released the letter and Representative Mark Pocan confirmed it was authentic, as SupplySide Supplement Journal reported that day.

The letter is a scanned image, so I am quoting the transcription that circulated with the release, cross-checked against the trade coverage. "I am rescinding our prior recommendation dated October 17, 2017, that the substances mitragynine and 7-hydroxymitragynine be permanently controlled in Schedule I of the CSA. HHS is instead recommending that mitragynine and 7-hydroxymitragynine not be controlled at this time, either temporarily or permanently, until scientific research can sufficiently support such an action." The reasoning: "while mitragynine and 7-hydroxymitragynine have many properties of an opioid, scheduling these chemicals at this time in light of the underdeveloped state of the science would be premature." And the consequence the department was weighing: "a significant risk of immediate adverse public health consequences for potentially millions of users if kratom or its components are included in Schedule I".

Read that as an operator and two things stand out. First, the department that had "no objection" to emergency scheduling in May 2016 concluded in August 2018 that the science was too underdeveloped to schedule at all. Second, it said so privately, and for two and a half years the public record carried a recommendation to schedule that had already been withdrawn. I think that is the single most revealing fact in this history. The decision not to decide was itself kept quiet.

What FDA actually says, and the word it never uses

The FDA is the agency people assume has ruled. Its page FDA and Kratom, current as of 2 December 2025, is the closest thing to a federal position that exists, and it is a marketing law position rather than a control one. "Therefore, kratom is not lawfully marketed in the U.S. as a drug product, a dietary supplement, or a food additive in conventional food." "There are no prescription or over-the-counter drug products containing kratom or its known alkaloids that are legally on the market in the U.S." FDA "will continue to warn the public against the use of kratom for medical treatment" and has "warned consumers not to use kratom because of the risk of serious adverse events, including liver toxicity, seizures, and substance use disorder".

Now search that page for the word "schedule". It is not there. Nor is "Controlled Substances Act", nor "DEA". The page tells you how kratom may not be marketed, estimates that "1.7 million Americans aged 12 and older used kratom in 2021", notes that 7-OH is "only a minor constituent that comprises less than 2% of the total alkaloid content in natural kratom leaves", and defers on the question everyone actually asks: "states may have their own regulations or prohibitions for kratom products. State health and law enforcement agencies are the best resource concerning applicable state laws." An agency that wanted this plant controlled would say so on its own kratom page. It says the plant cannot be sold as a supplement, and then it points you to your state.

It was not always this quiet. On 6 February 2018 Commissioner Scott Gottlieb issued a statement that FDA has since removed from its live site; the copy I am quoting is the one in FDA's own archive collection. "Based on the scientific information in the literature and further supported by our computational modeling and the reports of its adverse effects in humans, we feel confident in calling compounds found in kratom, opioids." The model, he said, "predicted that 22 (including mitragynine) of the 25 compounds in kratom bind to mu-opioid receptors", and the agency had "44 reported deaths associated with the use of kratom". Six months after that statement, HHS rescinded its scheduling recommendation. And the page carrying the statement is no longer on fda.gov. I do not know why it was removed, and I will not guess; I will only observe that the strongest thing a federal official ever said about this plant now survives in an archive.

One more date from the same FDA page, because it closes the loop. "FDA awarded a grant for a human abuse potential study on kratom in September 2024." Eight years after the imminent hazard, six after HHS called the science underdeveloped, the study that would develop it was commissioned.

2026: the decision that arrived in pieces, and stalled

This year the federal government moved, and it is worth being precise about how far. On 6 July 2026 the DEA published a notice of intent to temporarily schedule 7-OH above a threshold: any kratom botanical material with "more than 0.050 percentage of 7-hydroxymitragynine on a dry weight basis", or any other article with more than 0.050 percent or "greater than 1.00 milligram of 7-hydroxymitragynine in the article". The same day it published a second notice for three synthetic 7-OH relatives. The Administrator "intends to issue a temporary scheduling order as soon as possible after the expiration of 30 days from the date of publication". Thirty days ran out on 5 August.

On 26 August 2026 an order did publish, and it was the second one. The temporary order places "three 7-hydroxymitragynine-related substances (mitragynine pseudoindoxyl, MGM-15, and MGM-16)" in Schedule I, "effective August 26, 2026, until August 26, 2028". It does not contain the word "threshold" and it does not mention the 7-OH notice. The Department of Justice's press release drew the line itself: "This action is directed at deliberately manufactured and concentrated opioid products, not traditional botanical kratom." It added that 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 this "does not create a legal exemption".

The 7-OH threshold order, the one that would actually reach the shelves this industry built over the last three years, has not published. HHS opened a request for information on the threshold in July, explicitly "not soliciting comment on any permanent scheduling decision, the general safety or utility of kratom-derived products, or other policy questions", and extended the comment period to 10 September. Since then, on the Federal Register and on the public inspection desk, nothing. I check both, and I will keep checking, and the box at the top of this column is where the answer goes when it comes. As of the date on that box, the federal position on the plant itself is the one the DEA wrote in October 2016: as has been the case, noncontrolled.

So the states decided, and they decided fifty different things

A federal vacuum does not stay empty. The best neutral count is the Legislative Analysis and Public Policy Association's summary of state kratom laws, research current as of January 2026: "As of January 2026, 30 states and the District of Columbia regulate kratom or its components in some manner. In six states (Alabama, Arkansas, Indiana, Louisiana, Vermont, and Wisconsin), mitragynine and 7-OH are considered controlled substances, which results in all kratom products being banned in the state." Fourteen more states, LAPPA says, "have decided to place limits on the allowable concentration of 7-OH in kratom products and/or prohibit synthetic 7-OH products from being sold". And its one line on the federal picture is the same one I have spent this column on: "the federal government has yet to take any definitive action to ban or regulate kratom, mitragynine, or 7-OH through statutory or regulatory means".

That count is already stale, because 2026 has been the busiest year this category has had. Connecticut scheduled kratom by regulation, in force from 2 April, and its consumer protection department calls itself the seventh state to do so. Kansas added mitragynine to its Schedule I by statute. Tennessee enacted its prohibition. North Dakota's governor declared a public health emergency on 3 August, banned all kratom products from 5 August, and on 4 September signed a bill that bans synthetic derivatives and regulates natural leaf at 21 and over, with sales prohibited until the rules are written; his own release put the national tally at "Nine states have banned kratom, with a ban on sales also set to take effect next July in Kentucky." Massachusetts placed kratom in its Schedule I by emergency order from 28 August, for up to a year. In the other direction, Rhode Island's ban ended on 1 April 2026 when a licensing act replaced it, and the American Kratom Association counted Delaware, on 11 September, as "the 22nd state to enact kratom consumer protections". Nine bans, twenty two consumer protection acts, one repeal, and the two lists are being written by different people with different definitions. I keep the state by state map and the bill tracker on my industry intel page, and the plain list of where it is illegal in my states column. The counts above are each attributed to the body that made them, because I do not trust my own tally and neither should you.

This is what a non-decision costs. A federal verdict either way would have produced one rule. The absence of one has produced a Massachusetts emergency order, a Connecticut regulation, a Kansas statute, a North Dakota executive order later replaced by a bill, and a Rhode Island licensing regime, all in the same eighteen months, all covering the same leaf, none of them agreeing on what the leaf is. For a consumer that is confusing. For a company shipping across state lines it is a compliance map that changes monthly and a legal exposure that depends on which side of a river a parcel lands.

Meanwhile the rest of the world went the other way

In October 2021 the World Health Organization's Expert Committee on Drug Dependence reviewed kratom and its two alkaloids. Its conclusion, in its own annex: "there is insufficient evidence to recommend a critical review of kratom", and, for mitragynine and 7-OH, all but one member reached the same conclusion. Its recommendation was that the three "be kept under surveillance by the WHO Secretariat". Kratom is not listed under either of the international drug conventions. Two months earlier, on 24 August 2021, Thailand, where the tree is native, decriminalized it under an amended Narcotics Act; the Associated Press reported the justice minister saying thousands of cases were being dropped and 121 inmates released. I sell in the country that declared an imminent hazard and stepped back. The country the plant comes from let people out of prison for it.

The uncomfortable part: this industry earned the 2026 decision

Here is what I am not going to do, because I have read enough of my own trade's coverage to know how this column is supposed to end. It is supposed to end with the industry as the victim of an indecisive government. That is not what the record shows, and I would rather say so here than have someone say it for me.

In 2016 this industry celebrated the withdrawal, and it was right to; an emergency scheduling on 660 poison center calls was thin. In 2018 the government privately admitted the science was underdeveloped and asked, in effect, for it to be developed. The next eight years were the industry's chance to develop it, and instead the category developed 7-OH tablets, synthetic derivatives with lab names, and a gas station shelf that a Department of Justice press release now describes as "deliberately manufactured and concentrated opioid products". Those products are what the 2026 action is aimed at. They came from our side of the counter. The 0.050 percent threshold in the DEA's notice exists because someone in this trade discovered that a compound making up "less than 2% of the total alkaloid content in natural kratom leaves", in FDA's words, could be concentrated and sold, and then sold it hard. The government's non-decision gave us a decade. We spent it building the thing that ended it.

So when someone in this industry tells you kratom is legal because the science is on our side, ask which science. The human abuse potential study was funded in September 2024. The plant is legal by default, not by verdict, and a default runs out on whichever day an agency decides the science is finally developed enough, or on the day enough states have acted that the federal question is moot. Both of those days got closer this year, and the industry moved both of them.

Opinion: what I would actually do

Stop calling the non-decision a win. It has left this category with nine state prohibitions and twenty two different consumer protection statutes, and a serious operator would trade all of that for one federal rule it could plan around, even a strict one.

Then ask for that rule, in writing, with our name on it. The shape of it already exists in the documents quoted above. North Dakota's bill split the category the right way: synthetic derivatives banned, natural leaf regulated at 21 and over. The DEA has already written a 7-OH threshold. Add mandatory testing with published certificates, which the responsible end of this trade already does, and you have a federal standard that most of the people who actually grow, import and sell leaf could live under. If that standard costs the category its most profitable shelf, that shelf is the reason we are here.

And fund the science we complained was missing. HHS said in 2018 that the state of the science was underdeveloped. If this industry believes the plant would survive a proper human abuse potential study, the cheapest thing it could ever do is pay for one and publish it whatever it says. I have not seen a trade body propose that, and I include my own past silence in the observation.

If you have a document that changes any date in this column, send it and I will correct the piece at the top with your name on it. The box above is where the 7-OH order goes when it publishes. I would rather write that update than keep writing this one.

Disclaimer: This article summarizes publicly available material as of 21 September 2026 and links to primary sources so you can check them. 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. 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.