Siding with Attorney General James Uthmeier’s office, an administrative law judge on Wednesday dismissed a challenge to an emergency rule banning the sale and manufacture of a concentrated byproduct of kratom, known as 7-OH.
Uthmeier’s office issued a rule in August prohibiting the alkaloid 7-hydroxymitragynine, known as 7-OH, and adding it to the list of the state’s most dangerous drugs, saying the ban was needed “to avoid an imminent hazard to the public safety.”
Two businesses and six users of the substance filed a challenge at the Division of Administrative Hearings alleging the emergency regulation was invalid, in part, because Uthmeier’s office failed to follow proper procedures and failed to provide findings justifying the need for the rule.
A hearing in the case began on Dec. 3 and was scheduled to run for several days later in the month. But on Dec. 8, Uthmeier adopted another emergency rule that superseded the one being challenged.
The attorney general’s office the same day asked Administrative Law Judge Robert Cohen to dismiss the case.
Lawyers for Uthmeier argued Cohen “lacks statutory authority and jurisdiction to consider” the challenge because the “superseded emergency rule … is no longer in existence.”
Lawyers for the businesses and the 7-OH users argued that Uthmeier’s issuance of the new rule “represents an improper attempt to retroactively cure defects in the findings supporting the emergency rule.”
They added, “Such a maneuver exceeds the agency’s limited emergency rulemaking authority and improperly circumvents a petitioner’s right to seek timely review” under Florida administrative law. But in Wednesday’s decision, Cohen found that “nothing in” Florida law “prohibits the attorney general from superseding an emergency rule by adopting another emergency rule before the superseded rule expires on June 30, 2026.”
The Mystic Grove, LLC, a Florida-based company that operates two retail stores; Green Brothers Wholesale, Inc., which distributes hemp, kratom and other smoke-shop products; and six people — identified as K.T., B.M., J.E., A.G., A.R. and M.D. — who use 7-OH products — filed the administrative challenge.
Lawyers for the petitioners told The News Service of Florida they plan to file a challenge to the newly issued rule after the holidays.
Cohen, in Wednesday’s decision, said he “stands ready and willing to expedite a new challenge once such petition is filed and directed to the most current version of the emergency rule and the articulated findings justifying the exercise of emergency authority.”
