Wisconsin Legislative Council
AMENDMENT MEMO
One Ea st Ma in Stre e t, Suite 401 • Ma dison, W I 53703 • (608) 266-1304 • le g.council@le gis.wisconsin.gov • http://www.le gis.wisconsin.gov/lc
Memo published: January 26, 2024 Contact: Tom Koss, Staff Attorney, and Ethan Lauer, Senior Staff Attorney
2023 Assembly Bill 393
Assembly Substitute
Amendment 2
2023 ASSEMBLY BILL 393
2023 Assembly Bill 393 legalizes the sale of kratom in Wisconsin, subject to certain regulations
applicable to processors and retailers, and removes two substances from Schedule I of Wisconsin’s
Uniform Controlled Substances Act that are contained in kratom: mitragynine and 7-
hydroxymitragynine.
Under the bill, a kratom product is defined as: (1) any part of the leaf of the Mitragyna speciosa plant;
and (2) any product intended for human or animal consumption, including food, drink, chewing gum,
and food supplements, made from any part of the leaf of that plant.
The Department of Agriculture, Trade and Consumer Protection (DATCP) must maintain a publicly
accessible registry that includes the kratom products that may be sold in Wisconsin, and may seize and
destroy any kratom products offered for sale that are not registered in the registry.
A processor may not prepare, process, sell, offer for sale, or distribute a kratom product if the product is
not included in the DATCP registry or if the processor is not licensed as a food processing plant. A
person may not sell, offer for sale, or distribute a kratom product unless, for in-person sales, the person
keeps or displays the product in a manner in which only store employees can access the product before
sale, and, for online sales, the person verifies the buyer’s identity, age, and location.
Additionally, a processor may not sell, offer for sale, or distribute a kratom product if any of the
following apply:
The product is mixed or packed with a substance other than kratom product that affects the
product’s quality or strength to such a degree that the product may cause injury.
The product contains a poisonous or otherwise deleterious ingredient other than kratom, including
any controlled substance or controlled substance analog.
The product contains a level of 7-hydroxymitragynine in the alkaloid fraction that is greater than
one percent of the alkaloid composition of the product.
The product contains any synthetic alkaloid, including synthetic mitragynine, synthetic 7-
hydroxymitragynine, or any other synthetically derived compound of the Mitragyna speciosa plant.
The kratom product does not include a label on its packaging that states the amount of mitragynine
and 7-hydroxymitragynine contained in the packaged kratom product.
A processor that violates this provision is guilty of a Class C misdemeanor,
1
but has a good faith defense
if the processor shows by a preponderance of the evidence that the processor relied in good faith on the
1
A Class C misdemeanor is punishable by a fine of up to $500 or imprisonment of up to 30 days or both. - 2 -
representation of a manufacturer, a packer, a distributor, or another processor relating to a product
represented to be a kratom product.
The bill also prohibits the sale, offer for sale, or distribution of a kratom product to any person under
the age of 21. Any person who violates this provision is guilty of a Class C misdemeanor.
ASSEMBLY SUBSTITUTE AMENDMENT 2
Assembly Substitute Amendment 2 provides that all provisions of the bill are rendered void if the
Controlled Substances Board (CSB) timely takes a specified action, among several other changes.
The amendment requires the CSB, before September 1, 2024, to meet and determine if published and
peer-reviewed research provides clear and convincing evidence that mitragynine and 7-
hydroxymitragynine in their natural state in the leaf of the Mitragyna speciosa plant meet the criteria
established in the statutes for scheduling.
2
If the CSB determines that the two substances do not meet
the criteria, it must notify the Legislative Reference Bureau (LRB) of its determination. If the LRB
receives the notice before that date, the provisions in the bill are void. The provisions in the amendment
take effect on September 1, 2024, unless they are voided under this process.
Unless voided, the amendment narrows the second prong of the definition of a kratom product so that
is covers only a botanical supplement intended for human consumption made from any part of the leaf
of the Mitragyna speciosa plant (rather than a product intended for human or animal consumption,
including food, drink, chewing gum, and food supplements, made from that plant).
The amendment requires DATCP to maintain a publicly accessible registry of kratom products for
which it has received a certificate of analysis (rather than a registry of products that may be sold in
Wisconsin). A certificate of analysis is a written confirmation from an independent laboratory certifying
that the laboratory has analyzed and tested a kratom product and that the kratom product meets
requirements specified in the bill.
Under the amendment, a processor may only prepare, process, sell, offer for sale, or distribute a kratom
product if the processor submits to DATCP a certificate of analysis for the product for inclusion in
DATCP’s registry. The producer must also pay a fee that DATCP may charge for maintaining the
registry, if applicable, and follow guidelines set forth in federal regulations with regard to a botanical
supplement.
3
The amendment also requires that for in-person sales, a person may not sell, offer for sale, or distribute
a kratom product unless the person has on the premises a certificate of analysis from the product’s
processor and keeps or displays the product in a manner in which only the person and employees can
access it before sale or distribution. For online sales, the person must verify the buyer’s identity, age,
and location, and must post a certificate of analysis from the product’s processor at the online location.
2
Those criteria are the following: (1) the actual or relative potential for abuse; (2) the scientific evidence of its
pharmacological effect, if known; (3) the state of current scientific knowledge regarding the substance; (4) the history
and current pattern of abuse; (5) the scope, duration, and significance of abuse; (6) the risk to public health; (7) the
potential of the substance to produce psychological or physical dependence liability; and (8) whether the substance is
an immediate precursor of a substance already controlled under Wisconsin’s Uniform Controlled Substances Act.
3
The federal regulations are titled “Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or
Holding Operations for Dietary Supplements.” [21 C.F.R. part 111.] - 3 -
Additionally, a processor may not sell, offer for sale, or distribute a kratom product if any of the
following applies:
The product is mixed or packed with a substance other than kratom product that affects the
product’s quality or strength to such a degree that the product may cause injury.
The product contains a poisonous or otherwise deleterious ingredient other than kratom, including
any controlled substance or controlled substance analog.
The product contains a level of 7-hydroxymitragynine in the alkaloid fraction that is greater than
two percent of the alkaloid composition of the product (instead of one percent, as under the bill) in
the recommended service size as shown on the product’s registered product label.
The product contains any synthetic alkaloid, including synthetic mitragynine, synthetic 7-
hydroxymitragynine, or any other synthetically derived compound of the Mitragyna speciosa plant.
The kratom product does not include a product label on its packaging that states the amount of
mitragynine and 7-hydroxymitragynine contained in product’s recommended serving size (rather
than in the packaged kratom product, under the bill).
The amendment retains a penalty of up to 30 days of imprisonment and a fine of up to $500 for
violating this provision. As under the bill, a person who sells, offers for sale, or distributes a kratom
product to a person under the age of 21 is guilty of a Class C misdemeanor under the amendment.
BILL HISTORY
Representative Murphy offered Assembly Substitute Amendment 2 on January 19, 2024. On January
24, 2024, the Assembly Committee on State Affairs recommended adoption of Assembly Substitute
Amendment 2 on a vote of Ayes, 11; Noes, 2. The committee then recommended passage of the bill, as
amended, on a vote of Ayes, 9; Noes, 4.
For a full history of the bill, visit the Legislature’s bill history page.
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