N.Y. PBH Law § 1399-XX — New York Code / Act PBH / Article 13-I / Section 1399-XX
Sale or distribution of kratom products to minors
Status: in_force

§ 1399-xx. Sale or distribution of kratom products to minors. 1. For\npurposes of this section the following terms shall have the following\nmeanings:\n  (a) "A device capable of deciphering any electronically readable\nformat" or "device" shall mean any commercial device or combination of\ndevices used at a point of sale or entry that is capable of reading the\ninformation encoded on the bar code or magnetic strip of a driver's\nlicense or non-driver identification card issued by the state\ncommissioner of motor vehicles.\n  (b) "Card holder" means any person presenting a driver's license or\nnondriver identification card to a licensee, or to the agent or employee\nof such licensee under this section.\n  (c) "Enforcement officer" means, in a city with a population of more\nthan one million, the department of health and mental hygiene of such\ncity, which shall have the jurisdiction to enforce the provisions of\nthis section in such city; and in all other counties, shall mean the\ndepartment, which shall have jurisdiction to enforce the provisions of\nthis article pursuant to rules and regulations which may be promulgated\nby the commissioner.\n  (d) "Kratom" means any part of the plant Mitragyna speciosam whether\ngrowing or not, and any compound, manufacture, derivative, mixture, salt\nor preparation of such plant or synthesized or semi-synthesized\npreparations of mitragynine or 7-hydroxymitragynine, their derivatives,\nsalts, esters, and isomers.\n  (e) "Kratom business" means a sole proprietorship, corporation,\nlimited liability company, partnership or other enterprise in which one\nof the activities is the sale, manufacture or promotion of kratom and\nkratom accessories, either at wholesale or retail, whether such sale,\nmanufacture or promotion is primary or incidental, and including any\nagent and any employee.\n  (f) "Person" means a person, firm, company, corporation, partnership,\nsole proprietor, limited partnership or association.\n  (g) "Transaction scan" means the process, whether in person, online,\nor through any other means of communication, involving an automated bar\ncode reader by which a licensee, or agent or employee of a licensee\nunder this section reviews a driver's license or non-driver\nidentification card presented as a precondition for the purchase of\nkratom under this section.\n  2. No person or kratom business shall knowingly sell or provide kratom\nto any other person under twenty-one years of age.\n  3. (a) Any person or kratom business offering kratom for sale is\nprohibited from selling such kratom to individuals under twenty-one\nyears of age, and shall post in a conspicuous place a sign upon which\nthere shall be imprinted the following statement, "SALE OF KRATOM TO\nPERSONS UNDER TWENTY-ONE YEARS OF AGE IS PROHIBITED BY LAW". Such\nstatement shall be posted in the following manner: (i) in any physical\nlocation at which such products are offered for sale, it shall be\nprinted on a white card in red letters at least one-half inch in height\nand displayed as a sign, or (ii) on any website, it shall be posted in\nred letters in at least twelve-point font on any webpages on which such\nproducts are offered for sale, or (iii) in any mobile application, it\nshall be posted in red letters in at least twelve-point font on any\nscreens on which such products are offered for sale, or (iv) in any\nelectronic or printed materials, it shall be posted in red letters in at\nleast twelve-point font on any pages on which such products are offered\nfor sale.\n  (b) Sales of kratom shall be made only to an individual who\ndemonstrates, through (i) a valid driver's license or non-driver's\nidentification card issued by the commissioner of motor vehicles, the\nfederal government, any United States territory, commonwealth or\npossession, the District of Columbia, a state government within the\nUnited States or a provincial government of the dominion of Canada, or\n(ii) a valid passport issued by the United States government or any\nother country, or (iii) an identification card issued by the armed\nforces of the United States, or (iv) any other photographic\nidentification card issued by a governmental entity or educational\ninstitution indicating that the individual is at least twenty-one years\nof age. Such identification need not be required of any individual who\nreasonably appears to be at least twenty-five years of age, provided,\nhowever, that such appearance shall not constitute a defense in any\nproceeding alleging the sale of kratom to an individual under twenty-one\nyears of age.\n  (c)(i) Any person or kratom business may perform a transaction scan as\na precondition for such purchases.\n  (ii) In any instance where the information deciphered by the\ntransaction scan fails to match the information printed on the driver's\nlicense or non-driver identification card, or if the transaction scan\nindicates that the information is false or fraudulent, the attempted\ntransaction shall be denied.\n  (iii) In any proceeding pursuant to subdivision five of this section,\nit shall be an affirmative defense that such individual had produced a\ndriver's license or non-driver identification card apparently issued by\na governmental entity, successfully completed that transaction scan, and\nthat the kratom has been sold, delivered or given to such individual in\nreasonable reliance upon such identification and transaction scan. In\nevaluating the applicability of such affirmative defense the\ncommissioner shall take into consideration any written policy adopted\nand implemented by the seller to effectuate the provisions of this\nsection. Use of a transaction scan shall not excuse any person or kratom\nbusiness from the exercise of reasonable diligence otherwise required by\nthis article. Notwithstanding the above provisions, any such affirmative\ndefense shall not be applicable in any civil or criminal proceeding, or\nin any other forum.\n  (d) A person or kratom business shall only use a device capable of\ndeciphering any electronically readable format, and shall only use the\ninformation recorded and maintained through the use of such devices, for\nthe purposes contained in paragraph (c) of this subdivision. No person\nor kratom business shall resell or disseminate the information recorded\nduring such a scan to any third person. Such prohibited resale or\ndissemination includes but is not limited to any advertising, marketing\nor promotional activities. Notwithstanding the restrictions imposed by\nthis subdivision, such records may be released pursuant to a court\nordered subpoena or pursuant to any other statute that specifically\nauthorizes the release of such information. Each violation of this\nparagraph shall be punishable by a civil penalty of not more than one\nthousand dollars.\n  (e) A person or kratom business may electronically or mechanically\nrecord and maintain only the information from a transaction scan\nnecessary to effectuate this section. Such information shall be limited\nto the following: (i) name, (ii) date of birth, (iii) driver's license\nor non-driver identification number, and (iv) expiration date.\n  4. If the enforcement officer determines after a hearing that a\nviolation of subdivision two, or paragraph (a) of subdivision three, of\nthis section has occurred, a civil penalty may be imposed by the\nenforcement officer of no more than five hundred dollars, provided that\neach day that a person or kratom business fails to post signage required\nby paragraph (a) of subdivision three of this section that is identified\nby an enforcement officer shall be deemed a separate violation.\n  5. When the enforcement officer is the commissioner, the hearing shall\nbe conducted pursuant to the provisions of section twelve-a of this\nchapter. When the enforcement officer is the department of health and\nmental hygiene, the hearing shall be conducted pursuant to procedures\nset forth in the county sanitary code, or health code of such city, or\nin the absence thereof, pursuant to procedures established by the county\nlegislature or board of supervisors. Subsequent to any appeal having\nbeen finally determined, the commissioner may bring an action to recover\nthe civil penalty in any court of competent jurisdiction. Nothing herein\nshall be construed to prohibit an enforcement officer from commencing a\nproceeding for injunctive relief to compel compliance with this section.\n