The New York State Senate

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

                                   168

                       2019-2020 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2019
                               ___________

Introduced by Sens. HELMING, JACOBS, LANZA, ROBACH, SAVINO -- read twice
  and ordered printed, and when printed to be committed to the Committee
  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 eighteen

  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
  § 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.
  §  3. Article 13-F of the public health law is amended by adding a new
section 1399-mmm to read as follows:
  § 1399-MMM. SALE OF KRATOM PROHIBITED. 1. NO  PERSON  SHALL  KNOWINGLY
SELL  OR PROVIDE KRATOM TO ANY OTHER PERSON UNDER EIGHTEEN 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 PLACE OF BUSINESS WHEREIN KRATOM IS SOLD
OR OFFERED FOR SALE IS PROHIBITED FROM SELLING SUCH KRATOM  TO  INDIVID-
UALS  UNDER EIGHTEEN 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 EIGHTEEN YEARS OF AGE IS PROHIBITED BY

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

                                                           LBD04953-01-9

S. 168                              2

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 (I) A VALID DRIVER'S LICENSE OR NON-DRIVER'S  IDENTIFI-
CATION  CARD  ISSUED  BY THE COMMISSIONER OF MOTOR VEHICLES, THE FEDERAL
GOVERNMENT, ANY UNITED STATES TERRITORY, COMMONWEALTH OR POSSESSION, THE
DISTRICT OF COLUMBIA, A STATE GOVERNMENT WITHIN THE UNITED STATES  OR  A
PROVINCIAL  GOVERNMENT  OF THE DOMINION OF CANADA, OR (II) A VALID PASS-
PORT ISSUED BY THE UNITED STATES GOVERNMENT OR  ANY  OTHER  COUNTRY,  OR
(III)  AN  IDENTIFICATION  CARD ISSUED BY THE ARMED FORCES OF THE UNITED
STATES, OR (IV) ANY OTHER PHOTOGRAPHIC IDENTIFICATION CARD ISSUED  BY  A
GOVERNMENTAL ENTITY OR EDUCATIONAL INSTITUTION INDICATING THAT THE INDI-
VIDUAL  IS  AT LEAST EIGHTEEN YEARS OF AGE. SUCH IDENTIFICATION NEED NOT
BE REQUIRED OF ANY INDIVIDUAL WHO REASONABLY  APPEARS  TO  BE  AT  LEAST
TWENTY-FIVE  YEARS OF AGE, PROVIDED, HOWEVER, THAT SUCH APPEARANCE SHALL
NOT CONSTITUTE A DEFENSE IN ANY PROCEEDING ALLEGING THE SALE  OF  KRATOM
TO AN INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE.
  (C)(I) ANY PERSON OPERATING A PLACE OF 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 HAS BEEN SOLD, DELIVERED OR  GIVEN
TO SUCH PERSON IN REASONABLE RELIANCE UPON SUCH IDENTIFICATION AND TRAN-
SACTION  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 ARTICLE. USE OF A TRANSACTION SCAN  SHALL  NOT  EXCUSE  ANY  PERSON
OPERATING  A  PLACE  OF BUSINESS WHEREIN KRATOM IS SOLD, OR THE AGENT OR
EMPLOYEE OF SUCH PERSON,  FROM  THE  EXERCISE  OF  REASONABLE  DILIGENCE
OTHERWISE   REQUIRED   BY  THIS  ARTICLE.    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  SUBDIVISION,  SUCH
RECORDS MAY BE RELEASED PURSUANT TO A COURT ORDERED SUBPOENA OR PURSUANT
TO  ANY  OTHER  STATUTE THAT SPECIFICALLY AUTHORIZES THE RELEASE OF SUCH
INFORMATION. EACH VIOLATION OF THIS SUBDIVISION 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

S. 168                              3

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.
  § 4. The commissioner of health shall  conduct  a  study  relating  to
kratom.  The  study  shall  include  but not be limited to the potential
health risks, benefits and effects of kratom and shall review all avail-
able data relating to such. Such commissioner shall publish and submit a
report of his or her findings and recommendations to the  governor,  the
speaker  of the assembly and the temporary president of the senate on or
before one year from the effective date of this act.
  § 5. This act shall take effect immediately.