A legal battle over an emergency rule banning the sale and manufacture of a concentrated byproduct of kratom, known as 7-OH, is heating up in advance of an administrative hearing this week, as attorneys for the state seek years of health, employment and criminal records from men who maintain the substance has turned their lives around.
Attorney General James Uthmeier issued the rule in August prohibiting the alkaloid 7-hydroxymitragynine, known as 7-OH, and adding it to the list of the state’s most dangerous drugs, saying the ban was needed “to avoid an imminent hazard to the public safety.”
The substance has been sold in places such as smoke shops, and two businesses and six users filed a challenge at the Division of Administrative Hearings alleging the emergency regulation is invalid, in part, because Uthmeier’s office failed to follow proper procedures.
In the runup to a multiday hearing scheduled to start Wednesday, a clash has erupted over the privacy of the users who are part of the challenge and have been identified by initials. The wrangling is focused on whether their identities should be shielded and how much information about their backgrounds should be revealed.
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Uthmeier’s attorneys have asked Administrative Law Judge Robert Cohen to require the users to identify themselves by name. A motion filed last week by the challengers, who include veterans, asked Cohen to allow the men to testify in a “confidential setting” in a courtroom closed to the public.
The “public interest does not outweigh” the men’s “right to privacy in this circumstance,” the attorneys argued, adding the 7-OH users “should not be compelled to publicly identify themselves and force them to disclose such intimate details without the protection of anonymity.”
In an order issued last week, Cohen shut down the challengers’ request.
“While the Division of Administrative Hearings will not conduct ‘secret proceedings,’ members of the public attending the hearing will be warned not to disclose the names of protected individuals in any media or social media,” Cohen wrote, promising to maintain the users’ confidentiality "to the greatest extent reasonable and possible."
Cohen’s order also addressed myriad other issues stemming from the complaint, which included lengthy histories of the users’ experiences before and after they began using 7-OH. The men said the substance helped wean them from prescription or illicit drugs and remain clean, leading to improved relationships with their families and more stable employment.
One of the most contentious issues has been Uthmeier’s office seeking information about the men’s personal, medical, professional and criminal histories, an effort the challengers’ lawyers say is "overbroad, unduly burdensome, harassing" and violates their constitutional right to privacy.
As an example, lawyers for the state are asking for all medical and addiction-treatment records since 2009, personnel files, interactions with law enforcement, private text messages and social media communications spanning 16 years and documented proof of the users “sobriety.”
The requests seek “irrelevant, deeply personal information, which has no bearing on whether the agency (Uthmeier’s office) followed proper rulemaking procedures,” wrote the challengers’ lawyers, who include Steve Menton of the Rutledge Escenia, P.A. firm, and Paula Savchenko.
The requests “risk stigmatizing substance-use treatment, shaming recovering individuals, inflaming emotions” and punishing the users for participating in the challenge, the users’ lawyers argued in a motion last week.
“Discovery (in legal cases) is not a license to rummage through someone’s life,” the motion said.
Cohen’s order raised questions about the sweeping nature of the administrative complaint and the state’s response to it.
The complaint “appears to delve into factual matters that go well beyond the scope of challenges set forth in administrative law,” Cohen wrote.
Cohen’s order said he expects to rule “on whether specific addictions, mental health, employment, criminal, social media, or personal communications records are relevant to the issues in a challenge to an emergency rule.”
If the judge decides such testimony is relevant, the men will be allowed to testify and be subject to cross examination, he said.
The complaint was filed on behalf of The Mystic Grove LLC, a Florida-based company that operates two retail stores; Green Brothers Wholesale Inc., which distributes hemp, kratom and other smoke shop products; and six people — identified as K.T., B.M., J.E., A.G., A.R. and M.D. — who use 7-OH products.
The rule, issued on Aug. 13, went into effect immediately and is expected to remain in place for a year. Uthmeier is working with lawmakers to make the rule permanent. House and Senate bills have been filed for the legislative session that begins Jan. 13 to classify 7-OH as a Schedule 1 narcotic.
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The proximity of the legislative session complicates the case because lawmakers could take action to ban the substance while the rule is in effect, Cohen indicated in Tuesday’s order.
“A successful challenge to the emergency rule at issue here could, in practical effect, be a pyrrhic one, should the proposed legislation be taken up and passed,” he wrote.
Florida in 2023 prohibited the sale of kratom, a plant whose botanical name is “mitragyna speciosa,” to people under age 21. But legislation aimed at regulating or banning sale or use altogether has not passed.
The 7-OH alkaloid is one of the kratom’s most potent active compounds. Levels of 7-OH levels are low in whole kratom leaves, while isolated or concentrated forms of the compound are much stronger and often are sold as natural or health supplements.
Uthmeier’s ban came weeks after President Donald Trump’s administration took initial steps to add 7-OH to the nation’s list of dangerous drugs as part of a broader effort to address opioid addiction.
