DEA Moves 7-OH Toward Schedule I: Federal Charges Florida Kratom Sellers Face After November 13

If you sell 7-OH tablets, shots or gummies from a smoke shop, a gas station counter or a website, the Drug Enforcement Administration has now told you when your inventory can become a Schedule I controlled substance. On October 14, 2026, DEA published a notice of intent to temporarily place 7-hydroxymitragynine and mitragynine pseudoindoxyl in Schedule I whenever a product crosses a set concentration threshold. The temporary order can publish on or after November 13, 2026. From that day, the same product sitting on a shelf this morning can support a federal drug distribution charge.

Product on the shelf today can support a federal distribution charge once the temporary order publishes.

Key Takeaways

• DEA's October 14, 2026 notice says a temporary order placing above-threshold 7-OH in Schedule I can publish on or after November 13, 2026.
• Once the order publishes, distributing above-threshold 7-OH is a 21 U.S.C. § 841 offense carrying up to 20 years per count.
• The federal threshold, more than 1 mg per gram or milliliter or a mitragynine ratio under 100, tracks Florida's June 2026 emergency rule.
• Below-threshold products are not cleared: FDA treats 7-OH as an unapproved drug, and 21 U.S.C. § 331 misbranding charges stay available.
• South Florida retailers already face state Schedule I exposure, so testing and inventory decisions belong with counsel before November 13.

What DEA Published on October 14

The notice appears at 91 Fed. Reg. 65370 under Docket No. DEA-1570. DEA is acting under its temporary scheduling power, 21 U.S.C. § 811(h), which lets the agency place a substance in Schedule I for two years without the full rulemaking process if it finds an imminent hazard to public safety, with a possible one-year extension.

The threshold comes from an October 8, 2026 letter from the Assistant Secretary for Health. 7-OH and mitragynine pseudoindoxyl, alone or combined, are controlled when either test is met:

• the concentration is greater than 1 mg per gram for powders, capsules and other solids, or greater than 1 mg per milliliter for liquids; or
• the mass of mitragynine divided by the mass of 7-OH, mitragynine pseudoindoxyl or both is less than 100.

The same issue of the Federal Register withdraws DEA's July 2026 notice, which used a lower threshold. A separate August 26, 2026 temporary order already placed mitragynine pseudoindoxyl, MGM-15 and MGM-16 in Schedule I with no threshold at all, and that order stays in force until the new one replaces it.

"Neither HHS nor DEA has made a finding that these substances are safe to use at below-threshold levels."— DEA notice of intent, 91 Fed. Reg. 65370

DEA also wrote that "neither HHS nor DEA has made a finding that these substances are safe to use at below-threshold levels." Read that sentence twice if your business model depends on staying under the line.

Florida got here first. The Attorney General's August 2025 emergency rule made isolated and concentrated 7-OH a Schedule I substance under state law, and a June 2026 rule added related alkaloids and adopted the same 1 mg and 100-to-1 standard DEA is now proposing. Federal and state law are converging on one line, and Florida sellers will soon answer to both.

What the Government Is Building

The notice reads like an investigative plan. DEA describes products sold in gas stations, smoke shops, vape shops and online as tablets, shots, gummies and sublingual films, marketed as "botanical extracts" and "mood boosters," with fatal overdoses documented. Every one of those details is something agents can buy, test and photograph.

Expect controlled purchases at retail, laboratory testing of each product line, and tracing upstream to the distributors and importers who supply concentrated product. Website copy, social media posts and dosing claims will be offered as proof of intent, the same way FDA treats marketing copy as evidence that a product is an unapproved drug.

Every product DEA describes in the notice is something agents can buy, test and photograph. The investigation starts at the counter and runs upstream.

In my view, the first federal prosecutions after the order publishes will aim at distributors and importers, with store owners pressed to become witnesses or named as co-conspirators. South Florida, with its ports and distribution hubs, is where that upstream tracing is most likely to start.

Exposure and Charges

Once a product meets the threshold after the order publishes, the federal toolkit is the one used for any Schedule I drug:

• Distribution and possession with intent to distribute under 21 U.S.C. § 841. For a Schedule I substance with no specific quantity tier, the maximum is 20 years. If death or serious bodily injury results from use, a 20-year mandatory minimum applies, with a maximum of life. Given DEA's emphasis on overdose deaths, a 21 U.S.C. 841 defense in this area has to account for that provision from day one.
• Conspiracy under 21 U.S.C. § 846, carrying the same penalties as the object offense.
• Maintaining a drug-involved premises under 21 U.S.C. § 856, aimed squarely at store owners.
• Importation under 21 U.S.C. § 952 for anyone bringing product or extract in from overseas.
• Analogue prosecutions under 21 U.S.C. § 813. Once 7-OH is scheduled, a reformulated product built on a chemically similar alkaloid and sold for human consumption can be charged as a Schedule I analogue.
• Criminal forfeiture under 21 U.S.C. § 853 and money laundering under 18 U.S.C. § 1956 reach bank accounts, inventory and real estate tied to the proceeds.

Below the Threshold, and at Sentencing

Products under the threshold still carry Food, Drug, and Cosmetic Act exposure. FDA's position is that 7-OH is not a lawful dietary ingredient, which makes introduction of an unapproved new drug and misbranding under 21 U.S.C. § 331 available. Under 21 U.S.C. § 333, a first violation is a strict-liability misdemeanor, and a violation committed with intent to defraud or mislead is a felony carrying up to three years.

At sentencing, the Guidelines have no entry for 7-OH. The commentary to Section 2D1.1 sends courts to the most closely related controlled substance, and DEA's notice compares 7-OH to morphine. The sentencing guidelines calculation will turn on that comparator fight.

The government must prove the specific product exceeded the threshold. Sampling, testing method and batch variation are all in play.

To convict, the government must also prove the specific product exceeded the threshold, which puts sampling, testing method and batch variation squarely at issue.

Critical Mistakes People Make Early

• Selling down inventory before November 13. Florida already treats concentrated 7-OH as Schedule I, and a fire sale is evidence of knowledge.
• Relabeling or switching to a sister alkaloid. A "not for human consumption" label rarely survives a review of how the product was marketed, and analogue liability follows the chemistry.
• Shipping inventory back to a supplier without advice. After the order publishes, moving above-threshold product is itself distribution.
• Deleting websites, texts or invoices. Destroying records after you anticipate an investigation invites an obstruction count under 18 U.S.C. § 1519.
• Talking to DEA agents or diversion investigators without counsel, on the theory that you sold a legal product. Statements made at the counter become the government's proof of what you knew.

Strategic Defense Approach

Federal investigation defense in this setting starts before any agent arrives. Counsel can commission laboratory testing of current inventory so the results are protected work product, collect certificates of analysis from suppliers, and document every decision about what stays on the shelf and what is lawfully disposed of. That record is what separates a business that acted in good faith from one that kept selling after notice.

If a federal grand jury subpoena, a search warrant or a letter from the U.S. Attorney's Office arrives, a federal target letter attorney can learn whether you are a witness, a subject or a target, and open a pre-charge conversation with the AUSA. Retailers often hold information about upstream suppliers, which creates leverage. That leverage is spent badly in an unprotected interview; a proffer session attorney negotiates the terms first. If charges follow, the defense centers on threshold science, proof that the defendant knew the product was controlled, and the comparator at sentencing. A federal search warrant attorney should also move early on any seized accounts, where an asset forfeiture attorney can contest overbroad seizures.

Why Timing Matters

November 13 is the earliest date the order can publish, not a grace period. Every decision made before then about testing, inventory, suppliers and marketing will be read later as evidence of good faith or of knowledge. A temporary order lasts two years and can be extended while DEA pursues permanent scheduling, so this is not a problem that waits out. For Florida businesses, state exposure is already live. A Southern District of Florida federal defense strategy, or one in the Middle District, is cheapest and most effective when it starts now.

Common Questions

Facing a 7-OH or Kratom Investigation in Florida?

If DEA, FDA or a U.S. Attorney's Office has contacted you, served a subpoena, or executed a warrant at your store or warehouse, speak with counsel before you respond. AMC Defense Law represents businesses and individuals in federal investigations in Palm Beach, Broward and Miami-Dade and nationwide, and every consultation is confidential. Contact the firm to discuss your situation with a white collar defense attorney who handles federal drug and FDA matters.

Aaron M. Cohen, AMC Defense Law, Boca Raton.

If you or your loved ones have been arrested or are under federal investigation, call Aaron M. Cohen, 24 hours a day to get help.