HHS is accepting comments on the proposed federal scheduling threshold for 7-hydroxymitragynine (7-OH). The threshold selected will directly affect enforcement. Law enforcement has a unique and important voice in this process, because you understand what makes a law enforceable.
HHS is asking where the legal line should be drawn. Before making that decision, policymakers should hear from the people who investigate drug crimes, analyze evidence, and prosecute controlled-substance cases.
This page is designed for professional organizations and individuals whose work intersects with drug enforcement, forensic analysis, and prosecution. HHS will benefit from hearing directly from:
Your professional experience in the field provides critical context that policymakers may not otherwise consider.
The U.S. Department of Health and Human Services (HHS) has opened a public comment period on the proposed federal scheduling threshold for 7-hydroxymitragynine (7-OH). The threshold selected will directly affect how this substance can be policed, prosecuted, and controlled.
Law enforcement organizations have a unique and important voice in this process. You understand the practical realities of enforcement: what officers can determine in the field, what crime laboratories can measure, and what prosecutors can prove beyond a reasonable doubt. HHS needs to hear from you before a threshold is set that may be difficult or impossible to enforce.
A percentage threshold sounds precise on paper. But in practice, it creates a series of enforcement obstacles that officers, crime laboratories, and prosecutors may not easily overcome.
HHS is considering whether to schedule 7-hydroxymitragynine based on a percentage concentration threshold. While this approach may seem scientifically rigorous, it introduces significant practical challenges for law enforcement at every stage of the enforcement process, from the traffic stop to the courtroom.
Percentage-based thresholds create practical enforcement problems that are often overlooked in the policymaking process. Here are the key challenges law enforcement faces:
Officers rely on field tests to make probable cause determinations. Field tests indicate the presence of a substance; they do not measure concentration. A percentage threshold requires a determination that cannot be made at the roadside. This means officers cannot definitively establish whether a substance is lawful or unlawful during initial contact.
When a percentage threshold is in place, crime laboratories must not only identify the substance but also quantify its concentration with precision. This requires more sophisticated instrumentation, more rigorous validation protocols, and more time per case. With many labs already facing significant backlogs, this additional burden could delay investigations and prosecutions.
In court, prosecutors must prove beyond a reasonable doubt that a substance exceeds the legal threshold. This introduces complex questions about measurement uncertainty, analytical tolerances, and laboratory error margins. Defense attorneys may challenge laboratory results, potentially turning every case into a battle over scientific methodology rather than the underlying conduct.
Manufacturers may seek to formulate products to comply with any legal threshold, creating ongoing compliance and enforcement considerations. This creates a "cat and mouse" dynamic where enforcement is constantly chasing new formulations. A threshold that is low enough to be meaningful may be so low that it is practically indistinguishable from measurement error, creating further enforcement complications.
Your organization's comment should address the practical realities of enforcement. These are the questions HHS needs to consider, and your professional experience can help answer them.
Field tests cannot measure concentration. Officers would have to make arrests based on suspicion and then wait for laboratory analysis. This undermines efficient enforcement and creates uncertainty for officers in the field. HHS should consider whether a threshold that cannot be assessed in the field is practical for law enforcement.
Quantitative analysis requires more time, more training, and more expensive equipment than qualitative identification. Many crime laboratories are already underfunded and overburdened. A percentage threshold may increase case processing time and potentially extend backlogs, delaying justice.
Cases involving numerical thresholds can involve disputes regarding sampling, analytical methods, and measurement uncertainty. Prosecutors would need to establish not only that the substance is present, but also that its concentration exceeds the legal threshold within a margin of error. This shifts the focus of trials from conduct to scientific methodology.
Manufacturers may seek to formulate products to comply with any legal threshold, creating ongoing compliance and enforcement considerations. This means law enforcement will constantly face new products designed to evade enforcement. HHS should consider whether a threshold-based approach creates a regulatory "floor" that manufacturers can safely operate beneath.
Law enforcement agencies would need to train officers on a new, complex threshold. Policies would need to address how to handle products near the threshold. This creates additional administrative and training burdens for already-stretched agencies.
This is the central question. Law enforcement has the practical experience to advise HHS on what types of thresholds, if any, can be effectively enforced. Your organization's input on this question is essential to creating a law that actually works.
The impact of a percentage threshold varies across the enforcement chain. Here is how each role is affected:
State-level testimony already highlights the practical enforcement and public safety concerns that a federal threshold must address.
Federal agencies take public comments seriously. Comments from professional organizations, especially law enforcement associations, carry significant weight because they represent expert, practical perspectives on implementation.
Your organization's comment can help shape a federal scheduling policy that is actually enforceable, protecting public safety and ensuring that law enforcement has the tools to do its job effectively.
Before your organization submits a comment to the HHS docket, review this checklist to ensure your submission is as effective as possible.
HHS needs to hear from law enforcement. Submit a comment explaining whether a percentage-based threshold is practical and enforceable from the perspective of those who will have to enforce it.
Submit Your Comment Now