STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL


December 20r2017
Opinion No. 17-55


Legality of Possessing the Kratom Plant in Tennessee
Ouestion
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, Reueational 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 deriv e d ftom 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. g 39-17-452(a)(1) (emphasis added). Compounds expressly included in this
statutory prohibition are mitragynine and hydroxymitragynine. Tenn. Code Ann. $ 39-17-
a52@)(2)(H). Violations of Tenn. Code Ann. $ 39-17-452 are punishable as Class A
misdemeanors. Tenn. Code Ann. $ 39-17-452@).
Whether Tenn. Code Ann. $ 3S-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). "Vy'hen 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 þrm described in Tenn. Code Ann. $ 39-17-452(a). Section
39-17-452(a) expressly prohibits only forms of mitragynine and hydroxymitragynine that have
beeln "deriysf'-i.s., that have been obtained from a parent substance-by modffication of 2-
amino-1-phenyl-l-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(aXtXA)-(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. 5 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-I7-452(a)
do not fall within the prohibited categories under the statute.r
I In August 2016, the Drug Enforcement Administration published a notice of intent to place Kratom, mitragynine
and hydroxymitragynine on the schedule of controlled substances. 8l Fed. Fieg.59929 (2016) (to be codifiedat2l
C.F.R. $1303). The DEA subsequently withdrew that notice, 45 No. 3 Controlled Substances Hndbk.Newsl, ll
(2017).
2
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.