DENVER — As Gov. Jared Polis ponders a bill to increase Colorado’s regulation of the herbal remedy kratom, Dave Bregger said he feels like he’s on “pins and needles.”

The bill on Polis’s desk bears the name of Bregger’s son — Daniel Bregger, a 33-year-old Denver resident who died in 2021 after ingesting kratom and diphenhydramine, a common ingredient in Benadryl and sleep aids.

But whether Polis will sign the bill into law or not remains a mystery.

Supporters of Senate Bill 72 pushed the legislation through on the last day of the session after using a rare parliamentary maneuver. They say the new law would help rein in the most dangerous forms of kratom, while leaving consumer choice intact.

Industry opponents — including one company employing unconventional methods — are pushing for a veto, arguing the law would sow confusion in a growing market and ultimately harm consumers looking for a safe, effective product.

Kratom, a traditional herbal remedy from Southeast Asia, has exploded in popularity and availability in the United States over the past decade. Proponents point to the plant’s potential for a variety of uses, including as a stimulant or pain reliever, or as treatment for depression, anxiety and opioid withdrawal.

The U.S. Food and Drug Administration has warned against the use of kratom because of the herb’s potential for addiction, liver toxicity and seizures. The Harvard Medical School warns of “considerable uncertainty of (kratom’s) health risks,” including a lack of regulation.

But a general lack of independent research means there’s not enough information for a definitive conclusion about the plant, either.

Supporters of kratom argue that the herb by itself has proven safe for tens of millions of consumers, though tragedy has struck some, including Daniel Bregger. A 2024 Washington Post analysis found kratom implicated in 846 deaths across 30 states and Washington, D.C., in 2022, though the vast majority involved other substances as well.

Daniel Bregger’s father, Dave, said his son was a healthy young man enjoying the best of Colorado with his brother — hiking, mountain biking, skiing — and simply looking for a natural treatment for anxiety. Kratom and diphenhydramine, however, had a severe interaction that led to his death.

Knowing kratom has shown promise for some people’s pain management, Dave Bregger doesn’t want a ban, he said. He just wants stronger warnings and regulations to stop other parents from feeling their world shatter.

Bill’s supporters deploy ‘super motion’

Colorado lawmakers passed SB 72 to build on existing regulations for the emerging product. If the bill becomes law, sellers would need to bar kratom from being sold as candy or in a way that appeals to children, increase labeling requirements and limit how much kratom’s more potent active compound, 7-hydroxymitragynine, commonly marketed as 7-OH, can be found in the product.

The state already bars the sale of kratom to people younger than 21 under a law Polis signed in 2022.

The new law’s labeling requirements would include a warning that kratom can have unforeseen interactions with certain medications, in the hopes of preventing future deaths.

The bill was pared back from Sen. Kyle Mullica’s original vision of a new license to sell kratom because of Colorado’s budget crunch. He didn’t “want to sit idly by” waiting for the state’s fiscal outlook to improve while, in his view, a potential public health crisis emerged around an underregulated drug.

“They’re selling it at every smoke shop,” said Mullica, a Thornton Democrat and emergency room nurse. “They want to make it seem like it’s this healthy thing and it’s causing real harm. It has very addictive properties.”

The bipartisan bill faced a wave of pushback and an unusual path to passage. After the bill passed the Senate with 30 of 35 members voting yes, supporters in the House used a so-called “super motion” to clear a key committee in the waning days of the legislative session. A super motion, in effect, bypasses a committee hearing — and the chair, who controls the agenda — to force a bill to the floor for consideration by the whole chamber.

Rep. Matt Soper, a Delta Republican and sponsor of the bill, said it was the first time in more than 30 years the parliamentary maneuver had been used. The tactic paid off. The House voted 47-18 to pass the bill.

Now, the measure sits on Polis’ desk, with no clear indication if the governor will sign it into law. He has until June 6 to veto the measure.

“Governor Polis is reviewing the final form of the bill, inclusive of the changes that were made at the end of the process,” spokesperson Shelby Wieman said in a statement. The bill went through several amendments in its final week before passing on the last day of the legislative session.

Pushing for veto with $30 gift cards

The industry, meanwhile, has been jockeying for a veto.

Holistic Alternative Recovery Trust, or HART, an advocacy group for plant-based treatments, including kratom, said in a statement that the bill “fails to create any meaningful regulation” for the industry and called the measure “hastily written and ill-considered.”

In an interview, members of the group said they want more regulation for the industry — but they want clear regulation and clear enforcement. The crux of the complaint fell on how the state defines concentration limits for 7-OH, the key compound in some kratom products’ effects.

The bill creates artificial limits on the compound, while leaving loopholes for bad actors looking to game the percentage-based limit, said Kyle Ray, a board member for the trust and president of kratom manufacturer Colorado Chromatography. Because the bill limits the percentage of the 7-OH compound, manufacturers could bump up the total amount of other ingredients and create an overall less safe product.

“There is no regulator, there is no licensing process where they have to come inspect your facility,” Ray said. “That is beyond frustrating. It’s dangerous for the consumer.”

He also advocated for the compound as a “powerful harm reduction tool” against opioid addiction and overdose because of how it interacts with the body’s chemical receptors. Some medical professionals have questioned how effective kratom is in treating opioid addiction.

While the bill wouldn’t ban the 7-OH compound — something Ray is grateful for — other members of the trust have still made it a rallying cry. CBD American Shaman, a national distributor based in Kansas City, Missouri, and a member of HART, urged customers to “Protect 7-OH–Stop Colorado SB 72!” — and offered people $30 worth of product if they sent their state representatives a prewritten email about it.

CBD American Shaman did not return a request for comment.

Jeff Smith, national policy director for HART, said in a statement “that some small businesses are turning to creative strategies to engage and mobilize their customers in the face of what they see as existential threats to their companies.”

“Our focus at HART remains on promoting responsible, evidence-based regulation of kratom and 7-OH, and ensuring that the voices of consumers, patients and small businesses are part of that conversation,” Smith added.

‘Giving people information — that works’

Soper and Mullica, the bill sponsors, each said they’d never seen advocates on any side of a bill try to essentially pay customers to lobby an issue. It’s not immediately clear if the practice is explicitly barred. The Colorado Secretary of State’s Office declined to comment because a complaint could be filed about the practice, though none had been as of midweek.

They both see the bill as a win, if Polis signs it, particularly for addressing access by people younger than 21 and limits on synthetic products. They both said the push is about informing the public about what they’re consuming, not a ban.

“I would be lobbying to have it vetoed myself if it were an outright ban,” Soper said. “Prohibitions don’t work. Outright bans don’t work. But giving people information — that works.”

Meanwhile, Dave Bregger, whose son died from the mix of kratom and diphenhydramine, is also waiting for Polis’s decision. He’s asked for a signing ceremony and an invitation, if Polis makes it law.

“We’ve got to start somewhere. Watered down as it is, we’ve got to be able to build on it in future years,” Dave Bregger said. “Doing nothing at this point would just be exasperating to me. Something has got to be done. It’s a plague in Colorado.”

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