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.