House Appropriations Committee bill HR4502 could direct HHS to Keep Kratom Legal

On July 20, the House Committee on Appropriations released summaries of seven appropriations bills for fiscal year 2022, which runs from October 1, 2021 to September 30, 2022. One of the bills, HR4502 Labor, Health and Human Services, Education, and Related Agencies funding bill, includes a report, 117-96, that includes language that would direct the Secretary of Health and Human Services (HHS) “to maintain current Agency policy to not recommend that the substances mitragynine and 7-hydroxymitragynine, known as kratom, be permanently controlled in Schedule I of the Controlled Substances Act”.

The Food and Drug Administration (FDA) gives substance scheduling recommendations to the DEA. DEA then announces an intent to schedule the substance, and enacts the scheduling 30 days later. In 2016, FDA recommended that kratom be placed on Schedule 1 of the list of Controlled Substances. The DEA gave its requisite 30 day intent to schedule, but rescinded this intent after a grassroots mass movement of kratom advocates exerted public pressure.

FDA’s recommendation remained in effect until 2018, when HHS Assistant Secretary Brett Giroir sent a letter to DEA rescinding this recommendation. FDA is under the umbrella of HHS, therefore HHS can override its policy decisions.

Congressman Mark Pocan of Wisconsin, who discovered the Giroir letter earlier this year, is one of the most powerful kratom advocates in Congress as a member of the House Appropriations Committee.

Reports like 117-96 that go along with House appropriations bills are not necessarily legally binding, according to an FAQ by the Committee for a Responsible Federal Budget.

Do agencies have any discretion in how they use funds from appropriators?
Executive branch agencies must spend funds provided by Congress in the manner directed by Congress in the text of the appropriations bills. Appropriations bills often contain accompanying report language with additional directions, which are not legally binding but are generally followed by agencies.

https://www.crfb.org/papers/appropriations-101#discretion

So there’s no guarantee HHS will go along with the direction, however non-compliance would be politically unwise given the power of the appropriations committee to reconsider HHS funding for the following fiscal year.

The report also mentions kratom as an alternative to opioids. I wouldn’t have included the term “prescription opioids” as illicit heroin and fentanyl overdose rates have skyrocketed since doctors stopped prescribing opioids.

Kratom.—The Committee recognizes that NIDA-funded research has contributed to the continued understanding of the health impacts of kratom, including its constituent compounds, mitragynine and 7-hydroxymitragynine. The Committee is aware of the potential promising results of kratom for acute and chronic pain patients who seek safer alternatives to sometimes dangerously addictive and potentially deadly prescription opioids and of research investigating the use of kratom’s constituent compounds for opioid use disorder. The Committee directs NIDA to continue to invest in this important research, especially considering the increase in overdose deaths during the COVID–19 pandemic.”

http://docs.house.gov/…/HMKP-117-AP00-20210715-SD003.pdf

The report also also recommends $3 million in continued kratom research grants from Agency for Healthcare Research and Quality (AHRQ).

“Kratom.—The Committee directs the Secretary to maintain current Agency policy to not recommend that the substances mitragynine and 7-hydroxymitragynine, known as kratom, be permanently controlled in Schedule I of the Controlled Substances Act, either temporarily or permanently, until scientific research can sufficiently support such an action. The Committee encourages AHRQ to continue to fund research on natural products that are used by many to treat pain in place of opioids, including kratom. Given the wide availability and increased use of these substances, it is imperative to know more about potential risks or benefits, and whether they can have a role in finding new and effective non-opioid methods to treat pain. The Committee recommends an additional $3,000,000 for this research and directs AHRQ to make center based grants to address research which will lead to clinical trials in geographic regions which are among the hardest hit by the opioid crisis.”

http://docs.house.gov/…/HMKP-117-AP00-20210715-SD003.pdf

Implications for cannabis policy are also part of these seven appropriations bills, according to a detailed article by Kyle Jaeger at Marijuana Moment.

The US House of Representatives will consider HR4502 next week. We will keep you up to date on its progress.

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