A legal fight over an emergency rule banning the sale and manufacture of a concentrated kratom byproduct called 7-hydroxymitragynine, or 7-OH, is intensifying ahead of an administrative hearing this week. State attorneys are seeking years of health, employment and criminal records from several men who say the substance helped turn their lives around.
Attorney General James Uthmeier issued the August rule adding the alkaloid 7-OH to the state’s list of most dangerous drugs, saying the ban was necessary “to avoid an imminent hazard to the public safety.” The substance has been sold in venues such as smoke shops.
Two businesses and six users challenged the emergency regulation at the Division of Administrative Hearings, arguing in part that Uthmeier’s office did not follow proper procedures. As a multiday hearing set to begin Wednesday approaches, the dispute has turned on the privacy of the users, who are identified only by initials.
Uthmeier’s attorneys have asked Administrative Law Judge Robert Cohen to require the men to identify themselves by name. The challengers — who include veterans — asked Cohen to let them testify in a “confidential setting,” with the courtroom closed to the public.
“The public interest does not outweigh” the men’s “right to privacy in this circumstance,” their attorneys argued, saying the users “should not be compelled to publicly identify themselves and force them to disclose such intimate details without the protection of anonymity.”
Cohen rejected the challengers’ request in an order last week. “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,” he wrote, promising to maintain the users’ confidentiality “to the greatest extent reasonable and possible.”
The order also addressed other issues raised by the complaint, which included lengthy accounts of the users’ experiences before and after they began using 7-OH. The men said the substance helped wean them off prescription or illicit drugs and keep them clean, improving relationships with family members and stabilizing employment.
A central flashpoint has been the state’s broad requests for the men’s medical, professional and criminal histories. The challengers’ lawyers called those demands “overbroad, unduly burdensome, harassing” and a violation of their clients’ constitutional right to privacy.
As an example, the state is asking for all medical and addiction-treatment records since 2009, personnel files, records of interactions with law enforcement, private text messages and social media communications covering 16 years, and documented proof of the users’ “sobriety.”
Those requests, the challengers’ attorneys wrote, seek “irrelevant, deeply personal information, which has no bearing on whether the agency (Uthmeier’s office) followed proper rulemaking procedures.” The lawyers, including Steve Menton of Rutledge Escenia, P.A., and Paula Savchenko, said the demands “risk stigmatizing substance-use treatment, shaming recovering individuals, inflaming emotions” and could punish the users for bringing the challenge.
“Discovery (in legal cases) is not a license to rummage through someone’s life,” the motion said.
Cohen’s order questioned the sweeping nature of the administrative complaint and the state’s response. The complaint “appears to delve into factual matters that go well beyond the scope of challenges set forth in administrative law,” he wrote.
He 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 he finds such testimony relevant, the men will be permitted to testify and will be subject to cross-examination.
The complaint was filed on behalf of The Mystic Grove LLC, a Florida company that operates two retail stores; Green Brothers Wholesale Inc., a distributor of hemp, kratom and other smoke-shop products; and six users identified as K.T., B.M., J.E., A.G., A.R. and M.D.
Uthmeier’s rule, issued Aug. 13, took effect immediately and is expected to remain in place for a year while he works with lawmakers to make it permanent. House and Senate bills have been filed for the legislative session beginning Jan. 13 to classify 7-OH as a Schedule I narcotic.
Cohen noted that the timing of the upcoming legislative session complicates the case: lawmakers could ban the substance while the emergency rule is in effect. “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 banned the sale of kratom, the plant Mitragyna speciosa, to people under 21, but broader efforts to regulate or prohibit its sale have not passed. The 7-OH alkaloid is one of kratom’s most potent active compounds: levels are low in whole kratom leaves, while isolated or concentrated forms are much stronger and often sold as natural or health supplements.
Uthmeier’s ban followed weeks after the Trump administration took initial steps to add 7-OH to the national list of dangerous drugs as part of efforts to address opioid addiction.
This article was adapted from an original report published on wusf.org. All rights belong to the original publisher.