SB1868 - Relating to adding certain substances to the Texas Controlled Substances Act and regulating kratom and kratom products; increasing civil penalties; creating criminal offenses; increasing a criminal penalty.

      By: Perry, West S.B. No. 1868     A BILL TO BE ENTITLED   AN ACT   relating to adding certain substances to the Texas Controlled   Substances Act and regulating kratom and kratom products;   increasing civil penalties; creating criminal offenses; increasing   a criminal penalty.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 444, Health and Safety Code, as added by   Chapter 2 (S.B. 497), Acts of the 88th Legislature, Regular   Session, 2023, is redesignated as Chapter 445, Health and Safety   Code, and amended to read as follows:   CHAPTER 445  [ 444 ].  MANUFACTURE, DISTRIBUTION, AND SALE OF KRATOM   PRODUCTS          Sec.  445.001  [ 444.001 ].  DEFINITIONS. In this chapter:                (1)  "Food" has the meaning assigned by Section   431.002.                (2)  "Kratom" means any part of the leaf of the plant of   the species Mitragyna speciosa.                (3)  "Kratom processor" means a person who:                      (A)   processes kratom for a kratom product;                       (B)   manufactures, prepares, or  distributes[ , or   maintains ] kratom products for sale;                       (C)  [ (B) ]  advertises, represents, or holds   oneself out as a manufacturer or [ , ] preparer[ , or seller ] of kratom   products;                       (D)  [ (C) ]  is responsible for ensuring the purity   and proper labeling of kratom products; or                       (E)  [ (D) ]  packages or labels kratom products.                (4)  "Kratom product" means a food that contains [ ,   including an extract, capsule, or pill, containing any form of ]   kratom.                (5)  "Kratom retailer" means a person [ kratom   processor ] who sells or offers for sale kratom products to   consumers or who advertises, represents, or holds oneself out as a   person who sells kratom products to consumers.                 (6)     "Manufacture" has the meaning assigned by Section   431.002.          Sec.  445.002  [ 444.002 ].   TESTING AND LABELING [ LABEL ]   REQUIRED. (a)   Before a kratom product is sold at retail or   otherwise introduced into commerce in this state, a sample   representing the kratom product must be tested:                 (1)  by a laboratory that is:                       (A)  located in this state; and                         (B)     accredited by an accreditation body in   accordance with International Organization for Standardization   ISO/IEC 17025 or a comparable or successor standard; and                 (2)  to determine:                         (A)     the concentration and identity of the   alkaloids in the product; and                       (B)     the presence or quantity of heavy metals,   pesticides, microbial contamination, and any other substances in   the product as prescribed by the executive commissioner.           (b)   A kratom processor shall label each kratom product with   the product use directions necessary to ensure safe use of the   product by a consumer, including the recommended serving size for   the product.           (c)  [ (b) ]  A kratom retailer may only sell a kratom product   that is properly tested and labeled in accordance with this   section.           (d)     A person commits an offense if the person sells or   offers for sale a kratom product or a product marketed as containing   kratom that is not tested or labeled as required by this section.             (e)  An offense under this section is a Class A misdemeanor.          Sec.  445.003   [ 444.003 ].  ADULTERATED, CONTAMINATED, AND   PROHIBITED KRATOM PRODUCTS.   (a)     A person commits an offense if   the person manufactures, prepares, distributes, sells, or offers   for sale [ A kratom processor or kratom retailer may not prepare,   distribute, sell, or offer to sell ] a kratom product that:                (1)  is adulterated with a dangerous non-kratom   substance affecting the quality or strength of the product to a   degree that renders the product injurious to a consumer;                (2)  is contaminated with a poisonous or otherwise   deleterious non-kratom substance, including any substance   designated as a controlled substance by Chapter 481 (Texas   Controlled Substances Act);                (3)  contains a level of 7-hydroxymitragynine in the   alkaloid fraction that is greater than 0.1 [ two ] percent of the   overall alkaloid composition of the product; [ or ]                (4)  contains any artificial or synthetic alkaloids,   including artificial or synthetic 7-hydroxymitragynine and   synthetically derived compounds from [ a ] kratom ;                 (5)  is a prepackaged beverage; or                 (6)  is a prepackaged food other than:                       (A)  raw or dried kratom leaves;                       (B)  ground kratom leaves;                       (C)  kratom leaf powder; or                       (D)  clear capsules containing kratom leaf powder   [ plant ].           (b)  An offense under this section is a Class A misdemeanor.           (c)     A kratom product described by Subsection (a) is   considered to be adulterated for purposes of Chapter 431.            Sec.  445.004   [ 444.004 ].  OFFENSE : [ FOR ] DISTRIBUTION OR   SALE OF KRATOM PRODUCT TO INDIVIDUAL YOUNGER THAN 21 YEARS OF AGE   [ MINOR ]. (a)  A person commits an offense if the person   distributes, sells, or exposes for sale a kratom product or a   product marketed as containing kratom to an individual younger than   21 [ 18 ] years of age.          (b)  An offense under this section is a Class A [ C ]   misdemeanor.           Sec.   445.005.     OFFENSE: SALE OR DELIVERY OF CERTAIN KRATOM   PRODUCTS NEAR SCHOOL. (a)     In this section, "school" and   "premises" have the meanings assigned by Section 481.134.           (b)     A person commits an offense if the person sells, offers   for sale, or delivers a kratom product or a product marketed as   containing kratom in, on, or within 1,000 feet of the premises of a   school.           (c)  An offense under this section is a Class A misdemeanor.           Sec.   445.006.     OFFENSE: FALSE LABORATORY REPORT. (a)     A   person commits an offense if the person, with the intent to deceive,   forges, falsifies, or alters the results of a laboratory test   authorized or required by this chapter.           (b)     An offense under this section is a felony of the third   degree.           Sec.   445.007.     OFFENSE: SALE OF OTHER PRODUCTS PROHIBITED.   (a)   A person commits an offense if the person sells or offers for   sale a kratom product or a product marketed as containing kratom at   a location that also sells or offers for sale the following products   or products marketed as the following products:                 (1)     a consumable hemp product as defined by Section   443.001;                 (2)     a cigarette, e-cigarette, or tobacco product as   defined by Section 161.081; or                 (3)     an alcoholic beverage as defined by Section 1.04,   Alcoholic Beverage Code.           (b)  An offense under this section is a Class A misdemeanor.           Sec.   445.0071.     OFFENSE: MANUFACTURE, DISTRIBUTION, OR SALE   OF KRATOM PRODUCT FOR SMOKING.   (a)   In this section, "smoking"   means burning or igniting a substance and inhaling the smoke or   heating a substance and inhaling the resulting vapor or aerosol.           (b)     A person commits an offense if the person manufactures,   distributes, sells, or offers for sale a kratom product or a product   marketed as containing kratom for smoking.           (c)  An offense under this section is a Class A misdemeanor.           Sec.   445.0072.     OFFENSE:   MANUFACTURE, DISTRIBUTION, OR SALE   OF PILL OR TABLET CONTAINING KRATOM.   (a)   A person commits an   offense if the person manufactures, distributes, sells, or offers   for sale a pill or tablet that contains kratom or that is marketed   as containing kratom.   For purposes of this subsection, a capsule is   not considered to be a pill or tablet.           (b)  An offense under this section is a Class A misdemeanor.          Sec.  445.008   [ 444.005 ].  CIVIL PENALTY. (a)  A person who   violates this chapter is subject to a civil penalty in the amount   of:                (1)   $2,500 [ $250 ] for the first violation;                (2)   $5,000 [ $500 ] for the second violation; and                (3)   $10,000 [ $1,000 ] for each subsequent violation.          (b)  Each day a violation continues or occurs is a separate   violation for purposes of imposing a penalty under this section.          (c)  [ A kratom retailer is not liable for a civil penalty   under this section for a violation of Section 444.002 or 444.003 if   the kratom retailer proves by a preponderance of the evidence that   the violation was unintentional and due to the kratom retailer's   good faith reliance on the representation of another kratom   processor.          [ (d) ]  The attorney general or the district or county   attorney for the county or municipal attorney for the municipality   in which the violation is alleged to have occurred may bring an   action to recover a civil penalty under this section.          Sec.  445.009   [ 444.006 ].  PENALTIES UNDER OTHER LAW. The   penalties prescribed by this chapter are in addition to any other   penalties prescribed by law, including penalties prescribed by   Chapters 431 and 481.          Sec.  445.010  [ 444.007 ].  RULES. The executive commissioner   may adopt rules consistent with this chapter as necessary to ensure   the safe consumption and distribution of kratom and kra [Text truncated for display. Full text available on LegiScan.]