Assembly Bill A9121

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9121

                          I N  A S S E M B L Y

                            January 28, 2016
                               ___________

Introduced  by M. of A. LINARES -- read once and referred to the Commit-
  tee on Health

AN ACT to amend the public health law, in relation to the prohibition of
  the sale of kratom to individuals under the age of twenty-one

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  The  article heading of article 13-f of the public health
law, as amended by chapter 448 of the laws of 2012, is amended  to  read
as follows:
  REGULATION  OF TOBACCO PRODUCTS, HERBAL CIGARETTES, KRATOM AND SMOKING
PARAPHERNALIA; DISTRIBUTION TO MINORS
  S 2. Section 1399-aa of the public health law is amended by  adding  a
new subdivision 14 to read as follows:
  14.  "KRATOM"  MEANS ANY PART OF THE PLANT MITRAGYNA SPECIOSA, WHETHER
GROWING  OR  NOT,  AND  ANY  COMPOUND,  MANUFACTURE,  SALT,  DERIVATIVE,
MIXTURE, OR PREPARATION OF SUCH PLANT.
  S  3. Article 13-f of the public health law is amended by adding a new
section 1399-mmm to read as follows:
  S 1399-MMM. SALE OF KRATOM PROHIBITED. 1. NO  PERSON  SHALL  KNOWINGLY
SELL  OR  PROVIDE KRATOM TO   ANY OTHER PERSON UNDER TWENTY-ONE YEARS OF
AGE. ANY PERSON WHO VIOLATES THE PROVISIONS OF THIS SUBDIVISION SHALL BE
SUBJECT TO A CIVIL PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS.
  2.(A) ANY PERSON OPERATING  A  BUSINESS  WHEREIN  KRATOM  IS  SOLD  OR
OFFERED  FOR  SALE IS PROHIBITED FROM SELLING SUCH KRATOM TO INDIVIDUALS
UNDER TWENTY-ONE YEARS OF AGE, AND SHALL POST IN A CONSPICUOUS  PLACE  A
SIGN  UPON WHICH THERE SHALL BE IMPRINTED THE FOLLOWING STATEMENT, "SALE
OF KRATOM TO PERSONS UNDER TWENTY-ONE YEARS  OF  AGE  IS  PROHIBITED  BY
LAW."    SUCH  SIGN  SHALL  BE PRINTED ON A WHITE CARD IN RED LETTERS AT
LEAST ONE-HALF INCH IN HEIGHT.
  (B) SALES OF KRATOM SHALL BE MADE ONLY TO  AN  INDIVIDUAL  WHO  DEMON-
STRATES,  THROUGH  A  DRIVER'S LICENSE OR OTHER PHOTOGRAPHIC IDENTIFICA-
TION CARD ISSUED BY A GOVERNMENT ENTITY OR EDUCATIONAL INSTITUTION INDI-
CATING THAT THE INDIVIDUAL IS AT LEAST TWENTY-ONE  YEARS  OF  AGE.  SUCH
IDENTIFICATION  NEED  ONLY  BE REQUIRED OF ANY INDIVIDUAL WHO REASONABLY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD13656-01-6

A. 9121                             2

APPEARS TO BE AT LEAST TWENTY-FIVE YEARS OF AGE, PROVIDED, HOWEVER, THAT
SUCH APPEARANCE SHALL NOT CONSTITUTE A DEFENSE IN ANY PROCEEDING  ALLEG-
ING THE SALE OF KRATOM TO AN INDIVIDUAL UNDER TWENTY-ONE YEARS OF AGE.
  (C)(I)  ANY  PERSON  OPERATING  A  BUSINESS  WHEREIN KRATOM IS SOLD OR
OFFERED FOR SALE MAY PERFORM A TRANSACTION SCAN AS  A  PRECONDITION  FOR
SUCH PURCHASES.
  (II)  IN  ANY  INSTANCE WHERE THE INFORMATION DECIPHERED BY THE TRANS-
ACTION SCAN FAILS TO MATCH  THE  INFORMATION  PRINTED  ON  THE  DRIVER'S
LICENSE  OR  NON-DRIVER  IDENTIFICATION CARD, OR IF THE TRANSACTION SCAN
INDICATES THAT THE INFORMATION IS FALSE  OR  FRAUDULENT,  THE  ATTEMPTED
TRANSACTION SHALL BE DENIED.
  (III)   IN   ANY  PROCEEDING  PURSUANT  TO  SECTION  THIRTEEN  HUNDRED
NINETY-NINE-EE OF THIS ARTICLE, IT SHALL BE AN AFFIRMATIVE DEFENSE  THAT
SUCH PERSON HAD PRODUCED A DRIVER'S LICENSE OR NON-DRIVER IDENTIFICATION
CARD  APPARENTLY ISSUED BY A GOVERNMENTAL ENTITY, SUCCESSFULLY COMPLETED
THAT TRANSACTION SCAN, AND THAT THE KRATOM HAD BEEN SOLD,  DELIVERED  OR
GIVEN TO SUCH PERSON IN REASONABLE RELIANCE UPON SUCH IDENTIFICATION AND
TRANSACTION  SCAN.  IN  EVALUATING THE APPLICABILITY OF SUCH AFFIRMATIVE
DEFENSE THE COMMISSIONER SHALL TAKE INTO CONSIDERATION ANY WRITTEN POLI-
CY ADOPTED AND IMPLEMENTED BY THE SELLER TO EFFECTUATE THE PROVISIONS OF
THIS CHAPTER. USE OF A TRANSACTION SCAN  SHALL  NOT  EXCUSE  ANY  PERSON
OPERATING A BUSINESS WHEREIN KRATOM IS SOLD, OR THE AGENT OR EMPLOYEE OF
SUCH  PERSON,  FROM  THE  EXERCISE  OF  REASONABLE  DILIGENCE  OTHERWISE
REQUIRED BY THIS CHAPTER. NOTWITHSTANDING THE ABOVE PROVISIONS, ANY SUCH
AFFIRMATIVE DEFENSE SHALL NOT BE APPLICABLE IN  ANY  CIVIL  OR  CRIMINAL
PROCEEDING, OR IN ANY OTHER FORUM.
  (D)  A BUSINESS OR AGENT OR EMPLOYEE OF SUCH BUSINESS SHALL ONLY USE A
DEVICE CAPABLE OF DECIPHERING ANY ELECTRONICALLY  READABLE  FORMAT,  AND
SHALL  ONLY  USE THE INFORMATION RECORDED AND MAINTAINED THROUGH THE USE
OF SUCH DEVICES, FOR THE PURPOSES CONTAINED IN  PARAGRAPH  (C)  OF  THIS
SUBDIVISION.  NO  BUSINESS  OR  AGENT OR EMPLOYEE OF SUCH BUSINESS SHALL
RESELL OR DISSEMINATE THE INFORMATION RECORDED DURING SUCH A SCAN TO ANY
THIRD PERSON. SUCH PROHIBITED RESALE OR DISSEMINATION  INCLUDES  BUT  IS
NOT  LIMITED  TO  ANY  ADVERTISING, MARKETING OR PROMOTIONAL ACTIVITIES.
NOTWITHSTANDING THE RESTRICTIONS IMPOSED BY THIS PARAGRAPH, SUCH RECORDS
MAY BE RELEASED PURSUANT TO A COURT ORDERED SUBPOENA OR PURSUANT TO  ANY
OTHER  STATUTE THAT SPECIFICALLY AUTHORIZES THE RELEASE OF SUCH INFORMA-
TION. EACH VIOLATION OF THIS PARAGRAPH SHALL BE PUNISHABLE  BY  A  CIVIL
PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS.
  (E)  A  BUSINESS  OR  AGENT OR EMPLOYEE OF SUCH BUSINESS MAY ELECTRON-
ICALLY OR MECHANICALLY RECORD AND MAINTAIN ONLY THE INFORMATION  FROM  A
TRANSACTION  SCAN NECESSARY TO EFFECTUATE THIS SECTION. SUCH INFORMATION
SHALL BE LIMITED TO THE FOLLOWING: (I) NAME, (II) DATE OF  BIRTH,  (III)
DRIVER'S  LICENSE  OR NON-DRIVER IDENTIFICATION NUMBER, AND (IV) EXPIRA-
TION DATE.
  (F) AS USED IN THIS SUBDIVISION, "A DEVICE CAPABLE OF DECIPHERING  ANY
ELECTRONICALLY  READABLE  FORMAT",  "CARD HOLDER" AND "TRANSACTION SCAN"
SHALL HAVE THE SAME MEANINGS AS ARE ASCRIBED TO SUCH  TERMS  BY  SECTION
THIRTEEN HUNDRED NINETY-NINE-CC OF THIS ARTICLE.
  S 4. This act shall take effect immediately.