Bill Description: Senate Bill 1282 would newly regulate the sale of kratom, add age limits, impose penalties, and outlaw the sale of synthetic kratom products.
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Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?
Senate Bill 1282 would create Chapter 31, Title 37, Idaho Code, titled the “Idaho Kratom Consumer Protection and Safety Act.”
Currently, kratom is broadly legal to sell, buy, and use in Idaho, but this act would impose a range of regulations and prohibitions on it. Among these would be a total prohibition on selling, preparing, or distributing what the bill calls an “adulterated kratom product.”
The bill would define an “adulterated kratom product” as “a kratom product that contains any synthesized material, semisynthetic alkaloid, or synthetic kratom-like compound; contains added or artificially increased 7-hydroxymitragynine (7-OH); contains 7-OH that exceeds two percent (2%) of its total alkaloid content; contains more than one (1) milligram per serving of 7-OH; contains heavy metals exceeding applicable federal limits; contains microbial contamination, mold, salmonella, E. coli, or other harmful adulterants; or contains any controlled substance listed under chapter 27, title 37, Idaho Code.”
It’s worth noting that it’s already generally illegal to sell products that contain prohibited controlled substances, heavy metals exceeding applicable federal limits, or dangerous contaminants.
The bill would define kratom as “the mitragyna speciosa plant or any part of that plant.”
The effect of these definitions and the prohibition against selling, preparing, or distributing adulterated kratom would be to remove all forms of synthetic kratom from the market, some of which currently compete with natural kratom.
The bill would newly impose an age limit on kratom purchasers, saying “No person shall sell, deliver, or give away kratom or cause or permit kratom to be sold, delivered, or given away to any person under eighteen (18) years of age.”
The bill would also impose testing requirements on kratom processors, require them to maintain various records, and say they must “make available upon request by the department, a certification that the processor's operations are consistent with applicable federal regulations and guidelines.”
Additionally, the bill would impose labeling mandates, with each package being required to include “the name and business address of the processor or retailer; a batch number; and a statement that the product: contains kratom; has not been evaluated by the U.S. food and drug administration, and is not intended to diagnose, treat, cure, or prevent any disease; and is not for sale to persons under eighteen (18) years of age.”
The Idaho Department of Agriculture would be tasked with adopting “minimal rules” it deems “necessary to define acceptable contaminant limits and testing standards.”
The bill does include some directionally positive limitations on regulation. It would prohibit the department from adopting rules to impose “any licensing requirement, registration requirement, fee, or regulatory burden not expressly authorized in this chapter.”
It would preempt local regulation, saying, “It is the intent of the legislature … to occupy the whole field of regulation regarding natural kratom products such that no political subdivision of the state shall adopt or enact any standard or other requirement that is inconsistent with, varies from, exceeds, or imposes additional burdens than the provisions of this chapter. Any such standard or requirement that now exists, or that may hereinafter exist, is hereby declared to be unenforceable.”
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Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for non-violent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
The bill contains a variety of enforcement elements and penalties. It says that a person that “knowingly violates this chapter” is subject to a civil penalty not to exceed $1,000 for a first violation and $2,500 for a second or subsequent violation.
“Each batch or individually packaged product” sold in violation would constitute a separate offense, however, and there is no cap on the total fines that could be assessed.
The bill says the attorney general or a county prosecuting attorney in which the alleged violation occurred shall bring a civil action to enforce this chapter, and a political subdivision of the state may request the office of the attorney general and the county prosecuting attorney to bring a civil action to enforce this chapter.
A private cause of action would not be allowed.
It also says, “Any adulterated kratom product may be seized and destroyed pursuant to court order.”
The bill also adds criminal charges for anyone “who knowingly misrepresents age for the purpose of obtaining kratom,” deeming it a misdemeanor.
Under current law, the actions prohibited and penalized by this bill are generally legal.
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