The Massachusetts Commissioner of Public Health has placed all forms of kratom into Schedule I of the state’s Controlled Substances Act by emergency regulation. The instrument is 105 CMR 726.000, published on 13 August 2026. It takes effect on 28 August 2026 and stays in force for one year from that date.
Update, 5 September 2026. The regulation is now in force. The effective date arrived on 28 August 2026 unchanged, and 105 CMR 726.005 still reads exactly as it did when it was published: in effect for one year from that date unless the Commissioner finds during the period that the order is no longer necessary. We re-read the regulation and the Department of Public Health’s kratom page on 5 September and found no amendment to the text and no announced challenge to it. That is what we found, not a statement that no challenge exists; a suit filed and not yet reported anywhere we read would not show up here.
The federal position has also moved, and it moved after this piece was written. The detail is in the section on federal action below.
The order reaches further than the federal action, and it came before it. The US Drug Enforcement Administration published two proposed rules on 6 July 2026. One would place 7-hydroxymitragynine (7-OH) in Schedule I only above a concentration threshold of 0.050 percent. The other would place mitragynine pseudoindoxyl, MGM-15 and MGM-16 in Schedule I with no threshold at all. Neither one reaches the plant itself, and neither reaches mitragynine.
The second of those two is now finalised and the first is not. On 26 August 2026 the DEA issued a temporary scheduling order placing mitragynine pseudoindoxyl, MGM-15 and MGM-16 in federal Schedule I (91 FR 54948), effective the day it published and running to 26 August 2028. The 7-OH threshold proposal, 91 FR 40917, remains a proposed rule with no effective date. Massachusetts, by contrast, covers the plant, mitragynine and four further compounds, with no threshold anywhere in it.
What the regulation covers
Section 726.003 defines “kratom” as the plant Mitragyna speciosa together with five named compounds:
- mitragynine
- 7-hydroxymitragynine (7-OH)
- mitragynine pseudoindoxyl (MP)
- dihydro-7-hydroxymitragynine (MGM-15)
- 9-fluoro-7-hydroxymitragynine (MGM-16)
It extends to “their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible”, and then adds a catch-all: “Kratom includes any product held out or holding itself out to be kratom.”
That last clause attaches control to what a product claims to be, and not only to what it contains. On the face of the definition, a product marketed as kratom is inside it on the strength of the marketing.
Section 726.004 is the operative sentence, and it is one line: “Kratom is hereby placed in schedule 1 in accordance with M.G.L. c. 94C, § 2A.”
The power the Commissioner used
Section 2A of chapter 94C lets the Commissioner place an unscheduled substance in Schedule I temporarily. We read the statute. It requires five findings: that the placement is necessary to avoid an imminent hazard to public safety, that it is necessary for the preservation of public health, safety or general welfare, that the substance is not listed in any other schedule, that no exception is in effect for it, and that it is not excluded under section 2(c). Before making the imminent-hazard finding the Commissioner must consider the substance’s potential for abuse and its history and current patterns of abuse.
Section 726.001 recites each of those findings in turn.
Two features of section 2A explain the shape of what happened. Subsection (c) makes the order “an emergency regulation and subject to section 3 of chapter 30A”, with two carve-outs: no further approval is needed from the designated persons or bodies that section 3 refers to, and the regulation may run for up to one year.
That one-year figure is a departure. Section 3 of chapter 30A, read on its own, says an emergency regulation “shall not remain in effect for longer than three months” unless within that time the agency gives notice, gives interested persons an opportunity to present data, views or arguments, and files notice of compliance with the state secretary. Section 2A(c)(ii) replaces the three-month limit with a year. Whether it also displaces the notice-and-comment step that limit was attached to, or whether a comment process is still owed within three months, is not something either text resolves. We have seen no authority on it and we do not know.
Subsection (d) sets the 14-day notice period, which begins when the order is published on the Department of Public Health’s website or by any other means the Commissioner deems necessary, and separately requires the Commissioner to send the order to every acute inpatient hospital in the state.
Subsection (f) also obliges the Commissioner to send the order to the Attorney General of the United States with a request that the substance be temporarily scheduled federally under 21 U.S.C. § 811(h). So one consequence of the state order is a formal state request for a federal one.
Enforcement runs through municipal permits
Section 726.006 is headed “Guidance to all Local and Regional Boards of Health”. It tells them that “possession or distribution of kratom by any food, retail or other commercial establishment shall constitute an imminent health hazard.” While the order is in effect, a board of health, its authorised agent, a local inspection department or a municipal government may take enforcement action consistent with that finding, under section 30 of chapter 111 and regulations made under it, “up to and including summary suspension of a municipal license or permit held by the establishment including, but not limited to, a permit to operate.”
That wording tracks section 2A(g) of the statute almost exactly. The practical lever is a shop’s permit to trade.
DPH says retailers selling kratom products will be sent a notice covering the new classification, “the legal requirements regarding possession of Schedule 1 substances, and the potential for criminal enforcement for violation of the order.”
What the regulation does not do
It does not assign kratom to a class, and in Massachusetts that distinction carries weight.
Massachusetts runs two lists, and they are built differently. The schedules are established by regulation under section 2(a) of chapter 94C and set out in 105 CMR 700.002, which defines the state’s Schedule I as the substances listed in the federal schedule at 21 CFR 1308.11. Section 3 of chapter 94C does not contain the schedules themselves. It sets out the findings a substance has to meet before it can go into one. Classes A to E work the other way: section 31 lists them substance by substance, in the statute.
The criminal penalties draw on both lists. The possession offence in section 34 applies to “a controlled substance”, and section 1 defines that as a drug or substance “in any schedule or class referred to in this chapter”. A Schedule I placement is therefore enough on its own to bring kratom inside section 34, whose general penalty is up to one year’s imprisonment, a fine of up to $1,000, or both.
The heaviest supply offences are keyed to the classes instead. Sections 32, 32A, 32B, 32C and 32D each attach to a controlled substance in a named class in section 31, and the trafficking offence in section 32E attaches to named substances at named net weights. We searched section 31 for kratom, Mitragyna speciosa and mitragynine. None of the three appears in it, so none of those sections reaches kratom on this order alone.
That is not the same as saying nothing on the supply side attaches, and it is the point most easily misread. Several offences in the same chapter are keyed to “a controlled substance” rather than to a class, so they follow from the schedule placement directly:
- Section 32K punishes causing, inducing or abetting a person under 18 to distribute, dispense or possess with intent to distribute “any controlled substance as defined herein”. It carries a mandatory minimum of five years in state prison.
- Section 32I(a) covers selling, or possessing with intent to sell, drug paraphernalia for use with “a controlled substance in violation of this chapter”.
- Section 33 covers using, in the course of manufacturing or distributing a controlled substance, a registration number “which is fictitious, revoked, suspended, or issued to another person”.
- Section 40 punishes conspiring with another person to violate any provision of the chapter.
What any of this means for a particular person or business is a question for a lawyer, and we are not going to answer it here. Two structural points stand. The order does not trigger the offences carrying the heaviest supply penalties in Massachusetts drug law, because those are keyed to classes and kratom is in none of them. And the regulation’s own enforcement section does not reach for the criminal statutes at all. It reaches for municipal licensing.
Federal action could move the Massachusetts position further without any additional decision being taken in Massachusetts, by three routes.
The first is automatic. Because 105 CMR 700.002 defines the state’s Schedule I as whatever is listed in 21 CFR 1308.11, anything the DEA adds to the federal Schedule I is in the Massachusetts Schedule I as well. The second is mandatory. Section 2(a½) of chapter 94C requires the Commissioner, within thirty days of a federal final notice designating a substance as controlled, to issue a regulation placing it in the corresponding state schedule. The third reaches the classes, where the heavier penalties sit: Class A of section 31 includes, at paragraph (d)(8), “any synthetic opioid controlled in Schedule I of 21 C.F.R. 1308.11 or Schedule II of 21 C.F.R. 1308.12, unless specifically excepted or unless listed in another class in this section.”
The first route has now fired
When this piece was published all three routes were hypothetical. One is not any more.
The DEA’s temporary scheduling order of 26 August 2026 adds paragraphs (h)(89), (90) and (91) to 21 CFR 1308.11. Those are mitragynine pseudoindoxyl at DEA code 9672, MGM-15 at 9673 and MGM-16 at 9674, each with its isomers, esters, ethers and salts. They are federal Schedule I substances from 26 August 2026 until 26 August 2028.
Because 105 CMR 700.002 defines the Massachusetts Schedule I by reference to that federal section, those three compounds are in the Massachusetts Schedule I by that route as well as by the emergency regulation. For those three the state order is now belt and braces rather than the only thing holding them.
Two things that have not changed with it. The federal order does not touch the plant, mitragynine, or 7-OH, so for everything except those three compounds the Massachusetts placement still rests on 105 CMR 726.000 alone. And the emergency regulation still expires on 28 August 2027 unless renewed, while the federal order runs a year longer.
The class question is now live rather than hypothetical
The Class A route in section 31(d)(8) turns on whether a compound “controlled in Schedule I of 21 C.F.R. 1308.11” is a “synthetic opioid”. Until 26 August no kratom-derived compound was in that federal section at all, so the question could not arise. Three of them are in it now.
We still do not know the answer. The DEA order describes the three as having opioid activity, but “synthetic opioid” in section 31(d)(8) is a term in a Massachusetts criminal statute and the federal order is not construing it. We have found no Massachusetts authority deciding the point, and neither text settles it on its face. What has changed is that this is now a question a court could be asked, rather than one contingent on a proposal that had not issued.
The evidence set out in the order
The Order of the Commissioner attached to the regulation states the Massachusetts data behind the finding. Each figure below carries the limits the document itself puts on it.
Death records. The order gives the number of Registry of Vital Records and Statistics death records listing kratom, mitragynine or 7-OH in the “cause of death” fields, by year:
| Year | Records |
|---|---|
| 2020 | 15 |
| 2021 | 10 |
| 2022 | 16 |
| 2023 | 19 (preliminary) |
| 2024 | 18 (preliminary) |
| 2025 | 21 (preliminary) |
| 2026 | 8 (1 January to 28 July) |
Three of the seven years are marked preliminary. Separately, in an earlier passage, the order states that “[s]ince 2020, there have been approximately 100 deaths reported in Massachusetts to be associated with kratom or related substances”, and that deaths may be under-reported because no ICD codes currently relate to kratom. The order does not present that figure as a total of the table, and neither do we.
One caution about the table is ours rather than the order’s. A substance named in a cause-of-death field is not by itself a substance shown to have caused the death. The order does put it more strongly than the field name does: it says death records “contain the names of substances that contributed to death”, and it heads the table “Deaths associated with Kratom use in MA”. It also says patients are “especially at risk when combining with other substances and/or when they have a chronic health condition”, which describes co-occurrence rather than kratom acting alone. The published figures do not let anyone separate the two.
Emergency department records. From July 2025 through 28 July 2026, the state’s syndromic surveillance system (ESSENCE) recorded 314 visits where kratom was mentioned in either the triage notes or the chief complaint field. A mention in a triage note records what was said at intake, not what was found.
Poison centre calls. The Massachusetts and Rhode Island Poison Center reported 127 kratom-related calls from January 2021 through 29 July 2026. Ten were for children aged five or under, half of those for children aged one or under. About 46% were categorised as “moderate” or “major” effect. Calls between 1 January and 29 July 2026 approximately equal the total for the whole of 2025.
On the synthesised derivatives the order is explicit about what is not yet established. Overdose deaths involving MGM-15 and MGM-16 “have not yet been reported and confirmed”, it says, though both have caused respiratory depression and overdose in laboratory experiments. It says only “laboratory experiments” and does not describe them further, so what kind of evidence that is cannot be read off the document.
The order also cites the federal National Survey on Drug Use and Health estimate that 1.7 million Americans aged 12 and over used kratom in 2021, FDA warnings about liver toxicity, seizures and substance use disorder, and the FDA’s position that no prescription or over-the-counter product containing kratom or its known alkaloids is legally marketed in the United States. On candy-styled products it points to gummies flavoured and packaged like popular sweets. In a separate passage, about kratom products generally rather than about the gummies, it says they are not required to carry warning labels and are often stocked in areas in front of retail counters.
The legislature did not do this
A bill to ban kratom has been in front of the General Court and did not pass. H.1680, “An Act relative to a ban on Kratom”, was presented by Representative Rodney M. Elliott with Representative Colleen M. Garry and referred to the Judiciary committee on 27 February 2025, with a hearing scheduled for 6 May 2025. The committee reported it to the Clerk’s Office to accompany a study order, and on 26 March 2026 it accompanied that order, H.5281, under House Rule 27. The committee’s vote record reads: “Under the provisions of House Rule 27, matter timed out so no poll is required.” It never reached a vote.
Section 2A does not need the legislature. Subsection (c) removes the further approvals section 3 of chapter 30A refers to, and subsection (e) obliges the Commissioner only to forward a copy to the chairs of the joint committee on public health.
What happens after a year
The regulation expires one year after 28 August 2026, and section 726.005 lets it end sooner if the Commissioner finds in the meantime that the order is no longer necessary. Section 2A caps a temporary placement at one year and does not, on its face, provide for renewing it. A lasting prohibition would need legislation, or the ordinary scheduling process in section 2 of chapter 94C, or one of the federal routes described above. None of those has happened yet.
DPH expects withdrawal, and says so
The department’s own guidance is unusually direct about the consequence of its order. DPH and the Bureau of Substance Addiction Services say they expect “disruptions in the availability of all kratom products”, that people who regularly use them “are likely to experience opioid tolerance and withdrawal symptoms when they stop or reduce their use”, and lists those symptoms: craving, nausea, diarrhoea, muscle and head aches, sniffling, sneezing, sweating and irritability. It advises those people to seek medical care or substance use treatment.
DPH also states that where someone who has used kratom has slowed or stopped breathing, naloxone should be administered as though the overdose were opioid-related, and that naloxone is available in Massachusetts without a prescription. The department points people seeking treatment to the state Substance Use Helpline.
That is a state health department forecasting withdrawal as a direct effect of its own regulation. What the state’s treatment capacity will absorb is not addressed in the regulation.
What is still unknown
The regulation hands day-to-day application to every local and regional board of health in the state, and the enforcement action it names is suspension of a municipal permit. It sets out no statewide reporting mechanism, so how consistently it is applied from one town to the next is not something the document allows anyone to predict.
The deeper open question is whether the evidence supports scheduling the plant and its concentrated derivatives on the same terms. The order’s own account distinguishes the two, and locates the strongest harms with concentrated 7-OH and laboratory-modified compounds. The regulation makes no such distinction, and the pending federal proposals do not reach the plant or mitragynine at all. The order gives a reason for collapsing the categories, which is that the contents of kratom products, “both ‘natural’ and ‘synthetic’”, “vary widely in their ingredients, strength, and purity, and are difficult to distinguish from one another”, and that consumers have no reliable way of knowing what compounds a specific product contains. That is an argument about product markets rather than about pharmacology, and none of these documents resolves which approach the evidence actually supports. We don’t know either.
For readers in Europe
This is a US state measure with no legal effect in Europe. It matters here mainly as a signal of direction. Massachusetts has scheduled the plant itself, which neither pending federal proposal does, and it has done so while both of those remain unfinalised as of 17 August 2026. We have not checked every US state’s controlled-substances list, so we make no claim about which American jurisdiction goes furthest. Kratom’s status in Europe is set country by country and varies enormously, and we track it separately.