Attorney General James Uthmeier is asking an administrative law judge to toss out a challenge to an emergency rule banning the sale and manufacture of a concentrated byproduct of kratom, known as 7-OH.
Uthmeier on Aug. 15 issued the rule 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 rule went into effect immediately and will last for a year, though Uthmeier is working with the Legislature to make it permanent. The concentrated byproduct of kratom was available at smoke shops throughout the state.
Companies that sell 7-OH and users of the product filed a complaint at the state Division of Administrative Hearings last week alleging that the emergency ban is invalid, in part, because Uthmeier’s office failed to follow proper rulemaking procedures and it “was not adopted under a procedure which was fair under the circumstances.”
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But in a motion to dismiss filed Tuesday, lawyers for Uthmeier said the rule complied with state requirements and asked Administrative Law Judge Robert Cohen to dismiss the complaint.
The attorney general is only required to consider certain factors to justify a finding of “imminent hazard to the public safety” warranting an emergency rule, Uthmeier’s lawyers argued. Such factors relate to potential abuse and a history and current pattern of abuse, as well as the scope, duration and significance of abuse, the motion to dismiss said.
'Less onerous alternatives'
The complaint raised numerous questions about the emergency rule, including whether there were “less onerous alternatives” to address the purported need for the ban on 7-OH.
Tuesday’s motion, in part, argued that the complaint “exceeds the scope of a permissible challenge” under Florida administrative law.
An administrative law judge “looks only to the reasons set forth by the agency as the basis for adopting the rule to determine its validity, and it is not the court’s ‘responsibility to determine whether other means may have been more appropriate,’” the attorney general’s lawyers argued.
The complaint “goes well beyond … permissible parameters” for a rule challenge, “pleading as disputed facts what the petitioners would do if they were king for a day,” the state’s lawyers added.
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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.
As an example of the people in the case, the complaint said that M.D. unsuccessfully struggled for years to kick his opioid addiction.
“While kratom powder initially helped him reduce his dependence on opiates, it was not until he discovered 7-OH tablets that he was able to achieve lasting control over his addiction,” the complaint said.
State: Withholding names violates procedures
Uthmeier’s lawyers argued the complaint violates administrative law procedures because it “brazenly withholds the names” of the anonymous users “while disclosing lengthy, intimate discoverable facts” about their “family, health and details” of their lives and addictions.
“The user petitioners then command this tribunal that they will testify only at the hearing, in a secret, confidential session outside of the public. … There is no authority for petitioners’ attempt at such secrecy,” Uthmeier’s lawyers 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.
A hearing in the case is set to begin Dec. 3
