It seems as though a lot of people are a little panicked after the recent email that Dave Herman, chairman of the American Kratom Association, sent over the weekend. Here’s what that email said:
Kratom Warriors: We’re sounding the alarm. If Scott Gottlieb continues to spew his lies about kratom, the DEA will schedule it. A few days ago, we recognized the anniversary of the Notice of Scheduling for kratom. Make no mistake, they tried to schedule kratom once and the FDA wants to do it again. We need your help today to save kratom from being scheduled. Actually, we need your help right now. CLICK HERE TO MAKE A DONATION TO HELP IN THE FIGHT. Scott Gottlieb has declared war on kratom and he is filling Twitter, social media, and the mainstream media with one attack after another with one lie after another. Gottlieb is saying kratom is a dangerously addictive opioid that kills people. The scientists say that is not true – not even close. Scott Gottlieb’s audience is not just the DEA. He is talking directly to state policy makers too. And Gottlieb’s anti-kratom campaign is working in some places. That is why we are asking for your help right now! ~Dave Herman
Pretty startling, right?
I’m not here to water-down any preconceived notions one should have about the FDA, DEA, or any person who stands for the Kratom ban, but I would like to share some details with the Kratom community on what’s going on.
This panic you’re feeling is a good thing. It means you understand the severity of the implications brought forth by Scott Gottlieb and the FDA. It’s good because you can use that energy you’re feeling to fuel the fire and fight even harder for Kratom in these coming months.
But first you need to understand the rules for governing these types of situations. Before your underwear goes into a wad and cold sweat starts trickling down your face, you need to realize our government has to follow a certain set of rules before anything can happen.
How To Enforce A Kratom Ban
Scott Gottlieb has been running rampant on Twitter and other social media channels like a 14 year old schoolgirl. He has been spreading false information about this plant and one could immediately assume he is the one in charge, since his name is predominantly associated with this propaganda.
When you see a man of power and authority spreading information around social media, and then you see the chairman, Dave Herman, of one of our most prestigious fighting headquarters sound like he’s really nervous, that makes the rest of us nervous as well.
However, one of the things we have on our side is something called “separation of powers”. This becomes a Constitutional question when we begin looking at a Kratom ban because Article I, Section 8 grants Congress the power to regulate Interstate Commerce and they cannot go outside of those powers granted to them by the Constitution. On the other hand, you have Article 2, which basically tasks them with the faithful execution of the law. This is where the Doctrine of Non-Delegation comes into play.
This Doctrine says the legislative branch cannot delegate its function to the executive branch to such an extent that the executive branch becomes the legislative branch.
The Constitution has all of these separated for a reason. There is a “limited way” in which a branch can delegate different things. This is called an “intelligible principle”. This is a guided principle in which Congress has given an agency so they can carry out that principle without legislation.
To accomplish enforcing the law, agencies have 2 options:
- #1 – Rule Making – the agency writes up a rule and puts it in the federal register. In August 2016 the FDA wrote up a rule to schedule Kratom. This is called an informal rule-making. As long as they meet the required procedures on the procedures act then they are able to go through with the rule or law they have determined.
- #2 – Adjudicate – usually done under criminal law, making a formal decision on a problem or disputed matter.
I have read many white-papers and documents which share scientific reasoning behind why the Kratom ban shouldn’t take place.
You’ve read all of these too. You already understand the basic principles behind why you consume Kratom on a daily basis and how its helped you. We want to get the people in Washington to understand what we already know.
However, one thing we, as American citizens, might not know is the process through which the Kratom ban could take place. How is this going to work? Can the DEA press a button and make us all criminals? Can Scott Gottlieb and the FDA sway the DEA into thinking on their terms?
They would love that to happen, but according to the Constitution it’s not going to work that way.
Tyler Potts gives a great example of exactly how we will be able to stop the DEA by explaining some important principles inside the Kratom ban and the different regulations the government has.
The long arm of the law doesn’t look so long now…
Coming down to the bare bones of the chemical compounds of Kratom powder, this plant doesn’t fall under any of the constructs of the scheduling rules of the “Controlled Substances Act of 1970”.
Mr. Potts underlies a lot of truths in his video and I would recommend subscribing to his channel and learning more about the rules for governing when it comes to something as important as the Kratom ban.
Also take a look at Tyler’s legal paper on the scheduling of Kratom. More great information here.
It appears this will be a long process to come.
In order to adhere to the Kratom ban, different administrative powers have to follow a certain set of statutes and laws. Essentially, this falls to an 8-factor analysis test.
That fact in itself is enough to make you smile because you already know the results of the 8-factor analysis test performed by Dr. Jack Henningfield. Kratom passed the test and this is one of the main assessments performed on a substance for steps to be taken to schedule it.
That doesn’t mean you get to sit back and relax. This is the perfect opportunity for the Kratom community to educate the public and inform people who have been in the exposed to Scott Gottlieb’s commentary, the FDA, and the rest of the media, who have been blasting false information about Kratom.
We need to continue the fight, bring the 8-factor analysis to your representative and make sure they understand the scientific importance of this plant.