N.Y. Public Health Law § 1399-xx: Sale or distribution of kratom products to minors

§ 1399-xx. Sale or distribution of kratom products to minors. 1. For

purposes of this section the following terms shall have the following

meanings:

(a) "A device capable of deciphering any electronically readable

format" or "device" shall mean any commercial device or combination of

devices used at a point of sale or entry that is capable of reading the

information encoded on the bar code or magnetic strip of a driver's

license or non-driver identification card issued by the state

commissioner of motor vehicles.

(b) "Card holder" means any person presenting a driver's license or

nondriver identification card to a licensee, or to the agent or employee

of such licensee under this section.

(c) "Enforcement officer" means, in a city with a population of more

than one million, the department of health and mental hygiene of such

city, which shall have the jurisdiction to enforce the provisions of

this section in such city; and in all other counties, shall mean the

department, which shall have jurisdiction to enforce the provisions of

this article pursuant to rules and regulations which may be promulgated

by the commissioner.

(d) "Kratom" means any part of the plant Mitragyna speciosam whether

growing or not, and any compound, manufacture, derivative, mixture, salt

or preparation of such plant or synthesized or semi-synthesized

preparations of mitragynine or 7-hydroxymitragynine, their derivatives,

salts, esters, and isomers.

(e) "Kratom business" means a sole proprietorship, corporation,

limited liability company, partnership or other enterprise in which one

of the activities is the sale, manufacture or promotion of kratom and

kratom accessories, either at wholesale or retail, whether such sale,

manufacture or promotion is primary or incidental, and including any

agent and any employee.

(f) "Person" means a person, firm, company, corporation, partnership,

sole proprietor, limited partnership or association.

(g) "Transaction scan" means the process, whether in person, online,

or through any other means of communication, involving an automated bar

code reader by which a licensee, or agent or employee of a licensee

under this section reviews a driver's license or non-driver

identification card presented as a precondition for the purchase of

kratom under this section.

2. No person or kratom business shall knowingly sell or provide kratom

to any other person under twenty-one years of age.

3. (a) Any person or kratom business offering kratom 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

statement shall be posted in the following manner: (i) in any physical

location at which such products are offered for sale, it shall be

printed on a white card in red letters at least one-half inch in height

and displayed as a sign, or (ii) on any website, it shall be posted in

red letters in at least twelve-point font on any webpages on which such

products are offered for sale, or (iii) in any mobile application, it

shall be posted in red letters in at least twelve-point font on any

screens on which such products are offered for sale, or (iv) in any

electronic or printed materials, it shall be posted in red letters in at

least twelve-point font on any pages on which such products are offered

for sale.

(b) Sales of kratom shall be made only to an individual who

demonstrates, through (i) a valid driver's license or non-driver's

identification 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 passport 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 individual is at least twenty-one 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 twenty-one

years of age.

(c)(i) Any person or kratom business may perform a transaction scan as

a precondition for such purchases.

(ii) In any instance where the information deciphered by the

transaction 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 subdivision five of this section,

it shall be an affirmative defense that such individual 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 individual 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 policy adopted

and implemented by the seller to effectuate the provisions of this

section. Use of a transaction scan shall not excuse any person or kratom

business 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 person or kratom 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 person

or kratom 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

paragraph shall be punishable by a civil penalty of not more than one

thousand dollars.

(e) A person or kratom business may electronically 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) expiration date.

4. If the enforcement officer determines after a hearing that a

violation of subdivision two, or paragraph (a) of subdivision three, of

this section has occurred, a civil penalty may be imposed by the

enforcement officer of no more than five hundred dollars, provided that

each day that a person or kratom business fails to post signage required

by paragraph (a) of subdivision three of this section that is identified

by an enforcement officer shall be deemed a separate violation.

5. When the enforcement officer is the commissioner, the hearing shall

be conducted pursuant to the provisions of section twelve-a of this

chapter. When the enforcement officer is the department of health and

mental hygiene, the hearing shall be conducted pursuant to procedures

set forth in the county sanitary code, or health code of such city, or

in the absence thereof, pursuant to procedures established by the county

legislature or board of supervisors. Subsequent to any appeal having

been finally determined, the commissioner may bring an action to recover

the civil penalty in any court of competent jurisdiction. Nothing herein

shall be construed to prohibit an enforcement officer from commencing a

proceeding for injunctive relief to compel compliance with this section.