Dear Chair Weber Pierson and Chair McNerney:

My name is Jeffrey A. Singer. I am a Senior Fellow in Health Policy Studies at the Cato Institute. I am also a medical doctor specializing in general surgery and have been practicing that specialty in Phoenix, Arizona, for over 40 years. The Cato Institute is a 501(c)(3) non-partisan, non-profit, tax-exempt educational foundation dedicated to the principles of individual liberty, limited government, free markets, and peace. Cato scholars conduct independent research on a wide range of policy issues. To maintain its independence, the Cato Institute accepts no government funding. Cato receives approximately 80 percent of its funding through tax-deductible contributions from individuals. The remainder of its support comes from foundations, corporations, and the sale of books and other publications. The Cato Institute does not take positions on legislation.

Thank you for the opportunity to comment on AB 1088. The bill would establish testing requirements, labeling standards, and age restrictions for kratom products sold in California. At the same time, it would effectively eliminate the legal market for concentrated 7‑hydroxymitragynine (7‑OH) products by limiting allowable concentrations to trace levels.

For generations, people throughout Southeast Asia have used preparations made from the leaves of Mitragyna speciosa, commonly known as kratom, to help manage pain, fatigue, and anxiety. Kratom contains several biologically active alkaloids, most notably mitragynine and 7‑hydroxymitragynine (7‑OH), which interact with opioid receptors. In the United States, many individuals use kratom as an alternative to prescription opioids or to ease opioid withdrawal symptoms. Kratom products are available in a variety of forms, including powders, capsules, teas, and extracts, and increasingly, concentrated 7‑OH products sold through smoke shops, vape stores, convenience stores, and online retailers.

In 2016, the federal government considered banning kratom when the Drug Enforcement Administration proposed placing its active constituents in Schedule I of the Controlled Substances Act.1 Following significant opposition from patients, researchers, and consumers, the agency withdrew the proposal.2 Like alcohol, nicotine, cannabis, and conventional opioids, kratom and 7‑OH can produce dependence in some users, and a subset may develop what clinicians recognize as kratom use disorder. Because 7‑OH is substantially more potent than naturally occurring kratom alkaloids, concentrated products containing this compound have become increasingly popular among consumers seeking stronger effects.

Supporters of restrictions on kratom and 7‑OH often warn that these products could contribute to a new wave of overdose deaths. Yet the available evidence does not support that conclusion. Although kratom and 7‑OH possess opioid-like properties and can suppress respiration, deaths attributed solely to these substances are exceedingly uncommon.3 In the relatively small number of fatal overdose cases in which kratom or 7‑OH has been detected, investigators almost always identify other substances as well. Approximately two-thirds involve fentanyl, roughly one-third involve heroin, and nearly one-fifth involve prescription opioids or cocaine.4 Moreover, most decedents had documented histories of substance misuse, and the overwhelming majority were not receiving medical treatment for pain when they died.

Supporters of restrictions frequently point to highly publicized overdose deaths as evidence that 7‑OH products present an unacceptable public health risk. Such cases are understandably compelling and tragic. They also tend to encourage a simple narrative in which 7‑OH is portrayed as the sole cause of death.

A closer examination of the toxicology reports in several widely cited cases reveals a more complicated picture. In many instances, investigators found multiple substances in addition to kratom or 7‑OH. These often include fentanyl, amphetamines, sedatives, cannabinoids, antihistamines, or prescription medications known to increase the risk of respiratory depression when combined with opioid-like compounds.

For example, Tennessee’s Matthew Davenport, whose death inspired legislation criminalizing kratom, had diphenhydramine and psychiatric medications in his system in addition to 7‑OH.5 Colorado’s Daniel Bregger, for whom restrictive legislation was later named, tested positive for diphenhydramine, trazodone, and cannabinoids along with kratom.6 New Jersey legislators have cited the death of Christopher “CJ” Holowach, although toxicology reports identified amphetamines, tranquilizers, cannabinoids, fentanyl, and kratom.7 Likewise, supporters of Michigan legislation restricting 7‑OH frequently reference Dakota Herrera’s death despite toxicology findings showing anticonvulsant medications, cannabinoids, and kratom.8

These deaths were unquestionably tragic. But they illustrate an important reality: the cases most often cited in support of prohibition generally involve polysubstance exposure, making it difficult to conclude that 7‑OH alone was responsible for the fatal outcome.

California has extensive experience regulating psychoactive products through age restrictions, product testing, labeling requirements, and consumer-protection standards. The state has adopted this approach for alcohol, cannabis, tobacco products, and other regulated substances. AB 1088’s testing, labeling, and age-restriction provisions are consistent with that regulatory tradition.

However, restricting concentrated 7‑OH products to trace amounts moves beyond consumer protection and into the realm of effective prohibition. Such restrictions are unlikely to eliminate demand. Consumers who wish to obtain concentrated 7‑OH products will likely continue to do so through online vendors, out-of-state sources, or illicit suppliers.

Restricting legal access may also produce unintended public health consequences. Thousands of consumers report using kratom or 7‑OH to manage chronic pain, anxiety, post-traumatic stress symptoms, or to reduce their reliance on more dangerous opioids. If legal products become unavailable, some users may turn to unregulated markets where product strength, purity, and composition cannot be verified.

Experience with illicit fentanyl and counterfeit prescription drugs demonstrates the dangers of underground markets. Illegal suppliers cannot guarantee quality control, accurate labeling, or freedom from contamination. Criminal organizations that already distribute fentanyl, methamphetamine, heroin, and cocaine would have strong incentives to enter any market created by prohibiting concentrated 7‑OH products.9

Rather than eliminating legal access to concentrated 7‑OH products, policymakers should focus on evidence-based strategies that reduce harms while preserving consumer choice. These include product testing requirements, accurate labeling, age restrictions, public education regarding risks, and expanded access to treatment for individuals who develop substance use disorders.

AB 1088’s testing requirements, labeling standards, and age restrictions can help protect consumers. However, provisions that effectively eliminate the legal market for concentrated 7‑OH products are unlikely to eliminate demand and may instead push consumers toward unregulated sources. California can better protect public health through regulation, education, harm-reduction measures, and access to treatment than through policies that effectively prohibit products for which consumer demand remains strong.

Respectfully submitted,

Jeffrey A. Singer, MD, FACS
Senior Fellow, Department of Health Policy Studies
Cato Institute