Is it a crime in Tennessee to possess the Kratom plant in its natural, unprocessed form?

Plain-English summary

Senator Mark Green asked whether possessing a Kratom plant in its natural botanical form could expose someone to criminal prosecution in Tennessee, given that Tennessee law makes it a crime to possess mitragynine and 7-hydroxymitragynine, the active chemical compounds in Kratom.

The AG concluded that possession of the natural Kratom plant is not a crime in Tennessee. The reason is statutory construction. Tenn. Code Ann. § 39-17-452(a) does not prohibit mitragynine generally. It prohibits products "composed of or containing any amount of any compound, other than bupropion, which is structurally derived from 2-amino-1-phenyl-1-propanone" through one of three enumerated chemical modifications. Subsection (a)(2)(H) lists mitragynine and hydroxymitragynine as compounds that fall within this synthetic-derivative scheme, but the operative prohibition is on derivatives that have been obtained from the parent compound through specified modifications.

The Kratom plant produces mitragynine and 7-hydroxymitragynine naturally in its leaves. Those naturally occurring forms are not "derived" from 2-amino-1-phenyl-1-propanone through human chemical modification. They are biosynthesized by the plant. Reading § 39-17-452 according to its fair import, the AG concluded the statute prohibits only certain man-made, synthetic forms. The natural plant falls outside the prohibition.

The opinion explicitly contrasts this with marijuana, which is a Schedule VI controlled substance under Tenn. Code Ann. § 39-17-415(a) in both its natural botanical form and as its active ingredient THC. No Tennessee statute makes the Kratom plant a controlled substance in the same way.

The AG also noted (footnote 1) that the DEA published a notice of intent in August 2016 to schedule Kratom, mitragynine, and 7-hydroxymitragynine federally, but later withdrew that notice. As of the opinion's issuance, neither federal nor Tennessee law treats the natural Kratom plant as a controlled substance.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Kratom and its active compounds. Mitragyna speciosa, commonly called Kratom, is a tropical tree native to Southeast Asia. Its leaves contain mitragynine and 7-hydroxymitragynine, compounds that bind to opioid receptors and produce opiate-like analgesic effects. The opinion cites David Kroll, Recreational Drug Kratom Hits the Same Receptors as Strong Opioids, 94 Chemical & Engineering News 8 (June 6, 2016).

Tenn. Code Ann. § 39-17-452(a)(1). The operative prohibition. Makes it a Class A misdemeanor to "knowingly produce, manufacture, distribute, sell, offer for sale, or possess any capsule, pill, or other product composed of or containing any amount of any compound, other than bupropion, which is structurally derived from 2-amino-1-phenyl-1-propanone by modification in any of the following ways":

• (A) Substitution in the phenyl ring with alkyl, alkylendioxy, haloalkyl, or halide substituents.
• (B) Substitution at the 3-position with an alkyl substituent.
• (C) Substitution at the nitrogen atom with alkyl or dialkyl groups, or by inclusion of the nitrogen atom in a cyclic structure.

Tenn. Code Ann. § 39-17-452(a)(2)(H). Identifies mitragynine and hydroxymitragynine as compounds within this synthetic scheme.

Tenn. Code Ann. § 39-17-452(c). Penalty: Class A misdemeanor.

The interpretive question. Whether the statute reaches mitragynine and hydroxymitragynine that occur naturally in the Kratom plant, as opposed to synthetic forms produced from 2-amino-1-phenyl-1-propanone.

The fair-import rule. Criminal statutes are "construed according to the fair import of their terms." State v. White, 362 S.W.3d 559, 576 (Tenn. 2012). "When the meaning of the statutory language is clear, courts apply the plain meaning without complicating the task and apply the statute as written." Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013).

The AG's reading. § 39-17-452(a) reaches only mitragynine and hydroxymitragynine that have been "derived" (obtained from a parent substance) by modification of 2-amino-1-phenyl-1-propanone in one of the enumerated ways. The natural mitragynine in the Kratom plant has not been derived through human chemical modification of 2-amino-1-phenyl-1-propanone; it is biosynthesized in the plant. So natural Kratom does not fall within the statute's prohibited categories.

The marijuana contrast. Tenn. Code Ann. § 39-17-415(a) classifies marijuana, including its natural plant form and THC, as a Schedule VI controlled substance. The legislature could have done the same for Kratom; it did not. No other Tennessee statute makes the natural Kratom plant a controlled substance, and Tenn. Comp. R. & Regs. 0940-06-01-.01-.13 does not add one.

The 2016 DEA action. In August 2016, the DEA published a notice of intent to place Kratom, mitragynine, and hydroxymitragynine on the federal schedule of controlled substances. 81 Fed. Reg. 59929 (2016). The DEA later withdrew that notice. 45 No. 3 Controlled Substances Hndbk. Newsl. 11 (2017). As of December 2017, neither federal nor Tennessee law treated the natural Kratom plant as a controlled substance.

Common questions

Q: Is it legal to possess Kratom plants or leaves in Tennessee?
A: According to this opinion, yes, in the plant's natural botanical form. The Tennessee statute prohibits only synthetic mitragynine derivatives obtained through specific chemical modifications of 2-amino-1-phenyl-1-propanone, not the naturally occurring compounds in the Kratom plant.

Q: Does this opinion apply to Kratom capsules, powders, or extracts?
A: It depends. The statute reaches "any capsule, pill, or other product composed of or containing any amount of any compound . . . which is structurally derived from 2-amino-1-phenyl-1-propanone" by enumerated modifications. A product made from the natural plant material (dried leaves or powder, for example) that contains only the naturally occurring mitragynine should not fall within the prohibition based on this opinion's reasoning. A product made with synthetic mitragynine derivatives could.

Q: How is Kratom treated under federal law?
A: At the time of this opinion (December 2017), Kratom was not a federally scheduled controlled substance. The DEA proposed to schedule it in August 2016 but withdrew that notice. Federal status can change, so verify current law before relying on this point.

Q: Why does the statute target 2-amino-1-phenyl-1-propanone derivatives specifically?
A: That structural family covers a class of synthetic stimulants and opioid-like compounds, including cathinones. The statute appears designed to control the wave of synthetic mitragynine analogues marketed as "designer drugs," not the natural plant.

Q: How is this different from marijuana?
A: Tenn. Code Ann. § 39-17-415(a) expressly classifies marijuana (both the plant and THC) as a Schedule VI controlled substance. The Kratom statute reaches only the synthetic family. The legislature could have written the Kratom statute to cover the plant as well, as it did with marijuana, but it did not.

Citations and references

Statutes:

• Tenn. Code Ann. § 39-17-452(a)(1), (a)(2)(H), (c)
• Tenn. Code Ann. § 39-17-415(a)
• Tenn. Code Ann. §§ 39-17-406 to -416

Regulations:

• Tenn. Comp. R. & Regs. 0940-06-01-.01-.13

Cases:

• State v. White, 362 S.W.3d 559 (Tenn. 2012)
• Johnson v. Hopkins, 432 S.W.3d 840 (Tenn. 2013)

Federal Register:

• 81 Fed. Reg. 59929 (2016) (DEA notice of intent to schedule Kratom; later withdrawn)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-055.pdf

Original opinion text

Legality of Possessing the Kratom Plant in Tennessee

Question

Does possession of the Kratom plant in its natural botanical form subject a person to potential criminal prosecution under Tennessee law, which makes it a crime to possess mitragynine and 7-hydroxymitragynine in a synthetic form?

Opinion

Possession of the Kratom plant in its natural botanical form should not subject a person to potential criminal prosecution under Tennessee law. The Kratom plant in its natural botanical form is not a prohibited controlled substance under Tennessee law.

ANALYSIS

The Kratom plant has leaves that contain a natural form of mitragynine, a chemical compound that produces opiate-like analgesic effects. See David Kroll, Recreational Drug Kratom Hits the Same Receptors as Strong Opioids, 94 Chemical & Engineering News, 8 (June 6, 2016).

Tennessee prohibits the possession, sale, manufacture, and distribution of capsules, pills, and other products that contain a synthetic form of mitragynine or hydroxymitragynine:

Unless specifically excepted or unless listed in another schedule, it is an offense to knowingly produce, manufacture, distribute, sell, offer for sale, or possess any capsule, pill, or other product composed of or containing any amount of any compound, other than bupropion, which is structurally derived from 2-amino-1-phenyl-1-propanone by modification in any of the following ways:

(A) Substitution in the phenyl ring to any extent with alkyl; alkylendioxy; haloalkyl; or halide substituents, whether or not further substituted in the phenyl ring by one (1) or more univalent substituents;

(B) Substitution at the 3-position with an alkyl substituent; or

(C) Substitution at the nitrogen atom with alkyl or dialkyl groups, or by inclusion of the nitrogen atom in a cyclic structure.

Tenn. Code Ann. § 39-17-452(a)(1) (emphasis added). Compounds expressly included in this statutory prohibition are mitragynine and hydroxymitragynine. Tenn. Code Ann. § 39-17-452(a)(2)(H). Violations of Tenn. Code Ann. § 39-17-452 are punishable as Class A misdemeanors. Tenn. Code Ann. § 39-17-452(c).

Whether Tenn. Code Ann. § 39-17-452 prohibits possession of a Kratom plant in its natural botanical state is a matter of statutory construction. Criminal statutes are "construed according to the fair import of their terms." State v. White, 362 S.W.3d 559, 576 (Tenn. 2012). "When the meaning of the statutory language is clear, courts apply the plain meaning without complicating the task and apply the statute as written." Johnson v. Hopkins, 432 S.W.3d 840, 848 (Tenn. 2013).

The fair import of the terms of Tenn. Code Ann. § 39-17-452 is that the statute prohibits possession, manufacture, sale, and distribution of products that contain mitragynine or hydroxymitragynine in a synthetic form described in Tenn. Code Ann. § 39-17-452(a). Section 39-17-452(a) expressly prohibits only forms of mitragynine and hydroxymitragynine that have been "derived" — i.e., that have been obtained from a parent substance — by modification of 2-amino-1-phenyl-1-propanone. In other words, the statutory prohibitions apply only to mitragynine or hydroxymitragynine in forms that have been obtained by changing the compound. See definitions of "derive" and "modify" in New Oxford American Dictionary, 3rd ed. Furthermore, the prohibitions apply only to mitragynine and hydroxymitragynine forms that have been changed by modification of the chemical structure of 2-amino-1-phenyl-1-propanone in one of the specific ways set forth in Tenn. Code Ann. § 39-17-452(a)(1)(A)-(C).

Thus, it appears that only certain specified man-made, synthetic forms of mitragynine and hydroxymitragynine are controlled substances within the scope of Tenn. Code Ann. § 39-17-452. Mitragynine and hydroxymitragynine occur naturally in the Kratom plant and that have not been derived through one of the modification processes specified in Tenn. Code Ann. § 39-17-452(a) do not fall within the prohibited categories under the statute.¹

In sum, possession of the Kratom plant in its natural botanical form should not subject a person to potential criminal prosecution under Tennessee law. The Kratom plant in its natural botanical form is not a controlled substance under Tennessee law. See Tenn. Code Ann. §§ 39-17-406 through 39-17-416; see also Tenn. Comp. R. & Regs. 0940-06-01-.01-.13.² And we are aware of no Tennessee statute that expressly criminalizes possession of Kratom plants in their natural botanical form.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

MICHAEL A. MEYER
Special Counsel

Requested by:
The Honorable Mark Green
State Senator
748 Cordell Hull Building
Nashville, Tennessee 37243

¹ In August 2016, the Drug Enforcement Administration published a notice of intent to place Kratom, mitragynine and hydroxymitragynine on the schedule of controlled substances. 81 Fed. Reg. 59929 (2016) (to be codified at 21 C.F.R. § 1308). The DEA subsequently withdrew that notice. 45 No. 3 Controlled Substances Hndbk. Newsl. 11 (2017).

² In this regard, the Kratom plant in its natural botanical form is treated differently from botanical marijuana which, along with its active ingredient, tetrahydrocannabinol (THC), is classified as a Schedule VI controlled substance. See Tenn. Code Ann. § 39-17-415(a).