Why the SITSA Act Shouldn’t Impact Kratom or CBD

With Midterm elections over, it may be a good time to revisit a topic that seems to have fallen off the radar. While nobody knows exactly how a statute will be enforced once it’s enacted, there’s good reason to believe that we won’t see the SITSA (Stop the Importation and Trafficking of Synthetic Analogues) Act affect kratom (or cannabidiol or anything similar). Although advocates are worried that it will be used to further the war on kratom, as the act is written, it simply can’t.

(Feel free to skip ahead if you already know what the SITSA Act involves)

The SITSA Act was drafted as an amendment to the Controlled Substances Act to establish a new, sixth schedule of controlled substances — schedule A. Drugs in the new schedule would be those which have a chemical structure that is similar to, and an effect on the body that is similar to or greater than, a controlled substance in schedule I, II, III, IV, or V.

It also adds 13 specific synthetic fentanyl-related substances to the proposed schedule, immediately. It would also authorize, and establish procedures for, the Drug Enforcement Administration (DEA) to temporarily and permanently place a drug or substance in schedule A, and establish penalties for the sales (but not personal use or possession) of the drugs in schedule A.

Sounds fairly ominous, right? The American Kratom Association has stated that their “lobbyists believe” the act will give the FDA and DEA a backdoor way of banning kratom completely. In addition, they claim:

SITSA creates a new “Schedule A” that gives the Attorney General of the United States the power to ban any “analogue” of an opioid that controls pain or provides an increase of energy.
That is kratom…
They could of just called this bill the “Schedule Kratom” Act. This legislation will allow the Attorney General, and his supporters at the DEA, to add kratom to Schedule A on a “temporary basis” that will last for 5 years.

This is incorrect. The title of the bill includes the word “Synthetic.” While this may seem trivial, a plain reading of the statute clearly indicates that it is not meant to include non-synthetic compounds.

Looking at prior Supreme Court decisions, we find good reason to believe that the title of the statute will ultimately be the deciding factor. In Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998), we find that the “title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” If there was any doubt as to what the “Stop the Importation and Trafficking of Synthetic Analogues Act” was meant to stop, it’s all there in the title.

Synthetic Analogues. Synthetic. Kratom is not synthetic. Additional proof comes from the fact that the 13 compounds added to the new schedule are all synthetic.

But again, the title of the act itself is going to be the deciding factor in whether kratom is going to be effected. The Supreme Court has in the past, looked at the heading of an act to determine what, exactly, it makes illegal, even as recently as 2015, in Yates v. United States (135 S.Ct. 1074).

Yates v. United States involved a commercial fisherman who caught an (illegally) undersized red grouper and ordered a crew member to throw it overboard. This prevented federal authorities from confirming that he’d caught a fish that was less than the allowed size. As a result, he was charged with destroying evidence (a tangible object that could have been used in a federal investigation), under section 1519 of the Sarbanes-Oxley Act. This particular act is otherwise known as the “Public Company Accounting Reform and Investor Protection Act” (Senate) and “Corporate and Auditing Accountability, Responsibility, and Transparency Act” (House).

From those titles, does it seem likely that a fish is what Congress had in mind when they drafted the bill? No. Because the actual title of the act specifies the type of evidence it seeks to protect. This act was drafted in response to Enron going bankrupt and their accountants destroying evidence, and as a result, it prevents destruction of (tangible objects that are) records. In this act, the title of the relevant section reads: “ Destruction, alteration, or falsification of records in Federal investigations and bankruptcy.” So while the prosecution argued for a broad interpretation, the Supreme Court disagreed.

Justice Ginsburg, writing the plurality opinion, explained that:

If Congress indeed meant to make…an all-encompassing ban…one would have expected a clearer indication of that intent.

Likewise, if Congress intends SITSA to ban kratom, or be the “Schedule Kratom Act,” they’ve done exactly the opposite of what they need to do. They crafted an act that simply can not impact kratom, in any legitimate statutory interpretation.