HB 968: Controlled substances; mitragynine and hydroxymitragynine (7-OH) are Schedule I; provide

The House Committee on Judiciary, Non Civil offers the following substitute to HB 968:

A BILL TO BE ENTITLED

AN ACT

To amend Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled substances, so as to revise the regulation of kratom and kratom products; to designate certain kratom alkaloid derivatives, metabolites, and analogs as controlled substances; to provide definitions; to provide for limitations on the sale of kratom and kratom products; to provide for the availability of a licensed pharmacist; to provide for a real-time electronic logging system; to provide for nondisclosure of information; to provide for access to records by law enforcement agencies; to provide for violations, civil liability, and punishment; to prohibit the sale of any kratom product as a pressed tablet or compressed pill; to prohibit the sale of multi-serving kratom products; to revise labeling requirements; to provide for warnings; to prohibit advertising or marketing toward minors; to limit advertising or marketing; to provide for penalties; to provide for related matters; to provide for an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to controlled substances, is amended in Part 1 of Article 2, relating to schedules, offenses, and penalties, by revising paragraph (4) of Code Section 16-13-21, relating to definitions, as follows: "(4) 'Controlled substance' means a drug, substance, or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29 and Schedules I through V of 21 C.F.R. Part 1308. Such term shall include any synthetic or semisynthetic derivatives, alkaloid derivatives, analogs, concentrations, or metabolites of Mitragyna speciosa or kratom as identified in paragraph (23) of Code Section 16-13-25."

SECTION 2.

Said chapter is further amended in said part by revising Code Section 16-13-25, relating to Schedule I, by substituting a semicolon for the period at the end of paragraph (22) and by adding a new paragraph to read as follows:

"(23) Any material, compound, mixture, or preparation which contains any quantity of the following synthetic or semisynthetic derivatives, alkaloid derivatives, analogs, concentrations, or metabolites of Mitragyna speciosa or kratom:

(A) 7-hydroxymitragynine (7-OH or 7-OHM);

(B) Mitragynine or mitragynine pseudoindoxyl;

(C) MGM-15;

(D) MGM-16;

(E) 7-Acetoxymitragynine; and

(F) Any other synthetic or semisynthetic derivatives, alkaloid derivatives, analogs, concentrations, or metabolites of Mitragyna speciosa or kratom."

SECTION 3.

Said chapter is further amended in Article 6, relating to kratom, by revising Code Section 16-13-120, relating to definitions, as follows:

"16-13-120.

As used in this article, the term:

(1) 'Adulterated' has the same meaning as provided for in Code Section 26-2-26.

(2) 'Kratom' means the tropical evergreen known as Mitragyna speciosa, which is native to Southeast Asia and contains the alkaloid mitragynine or metabolite 7-hydroxymitragynine.

(3) 'Kratom extract' means a kratom product that has been modified, processed, or otherwise manufactured with a food-grade solvent.

(4) 'Kratom product' means a natural product containing any made from part of the leaf of the kratom plant mitragyna whether sold as a powder, capsule, pill, beverage, or extract, or other form.

(5) 'Pharmacist' shall have the same meaning as set forth in Code Section 26-4-5.

(6) 'Pharmacy' shall have the same meaning as set forth in Code Section 26-4-5. (7) 'Processor' means a person or entity that prepares, manufactures, distributes, or maintains kratom products or that advertises, represents, or holds itself out as preparing, manufacturing, distributing, or maintaining kratom products. Such term shall include a retailer to the extent such retailer engages in the business of a processor.

(8) 'Real-time electronic logging system' means an electronic system approved by the Georgia Bureau of Investigation which is operated in real time and which can track required information and generate a stop sale alert to notify a processor or retailer that a purchase of any kratom product which fails to comply with the requirements set forth in this Code section is being attempted. Such system shall:

(A) Contain an override function that will not only allow a processor or retailer to complete a sale in violation of this Code section when the person making the sale is in reasonable fear of imminent bodily harm if he or she does not complete the sale but also will track any override sale made;

(B) Be accessible to the state, the State Board of Pharmacy, processors, retailers, pharmacies, and law enforcement agencies, without a charge or fee, including a transaction fee; and

(C) Have real-time interstate communicability with similar systems in other states.

(9) 'Required information' means the full name and address of the purchaser; the type of government issued photographic identification presented, including the issuer and identification number; a description of the kratom product purchased; and the date and time of the purchase.

(10) 'Retailer' means a person or entity that sells or holds itself out as selling kratom products at retail to the general public, including, but not limited to, online or by mail order; provided, however, that such person or entity shall also be included within the definition of 'processor' as set forth in this Code section to the extent that he or she engages in the business of a processor. Such term shall include any owner, operator, or manager of any entity that sells kratom products at retail but shall not include a store employee at a retailer's place of business when such employee does not exercise any control over such retailer's business or the selection of kratom products to be sold at such retailer's business."

SECTION 4.

Said chapter is further amended in said article by revising Code Section 16-13-121, relating to possession by individual under age 21, sale, and penalty, as follows:

"16-13-121.

(a)(1) No person shall knowingly sell or transfer possession of any kratom, kratom product, or kratom extract to another person under 21 years of age, nor shall any person under 21 years of age purchase or possess any kratom, kratom product, or kratom extract. (2)(A) The prohibition contained in paragraph (1) of this subsection shall not apply with respect to the sale or transfer of possession of kratom, kratom product, or kratom extract by a person when such person has been furnished with proper identification showing that the individual to whom the kratom, kratom product, or kratom extract is sold or transferred is 21 years of age or older.

(B) In any case when a reasonable or prudent person could reasonably be in doubt as to whether or not the individual to whom kratom, kratom product, or kratom extract is to be sold or transferred is actually 21 years of age or older, it shall be the duty of such person to request to see and to be furnished with proper identification. The failure to make such request and verification may be considered by the trier of fact in determining whether such person did knowingly sell or transfer possession in violation of paragraph (1) of this subsection.

(b) No person shall ingest kratom in a manner that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor in a solution or other form, including, but not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or other container of kratom in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device.

(c) No person shall sell, deliver, cause to be delivered, or assist in the delivery of any kratom in or to this state that can be ingested in a manner that violates subsection (b) of this Code section.

(d) No person processor or retailer shall offer for sale or sell any kratom or kratom product in this state unless:

(1) The kratom or kratom product is a natural product made from part of the leaf of a kratom plant grown in the United States of America;

(2) The kratom or kratom such product is behind a counter in an area only accessible to store employees or in a secured display which is only accessible with the intervention of a store employee;

(3) A licensed pharmacist is present at such counter or available by means of real-time two-way audio, visual, or other telecommunications or electronic communications to answer any questions about the use of kratom or kratom products and risks of interactions with prescription drugs or contraindications for certain conditions, illnesses, or diseases; and

(4)(A) On and after January 1, 2027, the processor or retailer shall, before completing the sale of any kratom or kratom product, electronically track all such sales and submit the required information to a real-time logging system and maintain a record of required information for each sale for a period of two years from the date of each transaction, after which such record may be destroyed. All written and electronic logs or records shall not be disclosed except that law enforcement agencies shall be provided immediate access upon request.

(B) If a processor or retailer selling any kratom or kratom products experiences mechanical or electronic failure of the real-time electronic logging system and is unable to comply with the requirements of this paragraph, the person shall maintain a written log or an alternative electronic recording mechanism until such time as the person is able to comply with the electronic logging requirement.

(C) Absent negligence, wantonness, recklessness, or deliberate misconduct, any person utilizing the real-time electronic logging system in accordance with this paragraph shall not be civilly liable as a result of any act or omission in carrying out the duties required by this paragraph and shall be immune from liability to any third party unless the person has violated any provision of this paragraph in relation to a claim brought for such violation.

(D) The Georgia Bureau of Investigation shall provide real-time access to records on such logging system through an online portal to law enforcement agencies in this state. (e)(1) Except as provided in paragraphs (2) and (3) of this subsection, any Any person that commits an act in violation of this Code section shall be guilty of a misdemeanor; provided, however, that, for a conviction of a first offense, such individual shall be punished by a fine not to exceed $250.00; for a conviction of a second offense, such individual shall be punished by a fine of up to $500.00; and for a conviction of a third offense and each subsequent offense, such individual shall be punished by a fine of up to $1,000.00.

(2)(A) A processor who knowingly or with criminal negligence commits an act in violation of this Code section shall, upon a first conviction thereof, be guilty of a misdemeanor of a high and aggravated nature, and upon a subsequent conviction, be guilty of a felony, and shall be punished by imprisonment for not less than one year nor more than 15 years, by a fine not to exceed $100,000.00, or both.

(B) A processor who negligently commits an act in violation of this Code section shall be guilty of a misdemeanor and subject to a fine not to exceed $1,000.00 per violation. (3)(A) A retailer who knowingly or with criminal negligence commits an act in violation of this Code section shall, upon a first conviction thereof, be guilty of a misdemeanor of a high and aggravated nature, and upon a subsequent conviction, be guilty of a felony, and shall be punished by imprisonment for not less than one year nor more than 15 years, by a fine not to exceed $100,000.00, or both.

(B) A retailer who negligently commits an act in violation of this Code section shall be guilty of a misdemeanor; provided, however, that, for a conviction of a first offense, such retailer shall be punished by a fine not to exceed $250.00; for a conviction of a second offense, the retailer shall be punished by a fine of up to $500.00; and for a conviction of a third offense, such retailer shall be punished by a fine of up to $1,000.00; provided, further, that upon each subsequent conviction after a third conviction, the retailer shall be guilty of a high and aggravated misdemeanor and shall be imprisoned for not less than ten days nor more than 12 months and punished by a fine of not less than $1,000.00 nor more than $5,000.00."

SECTION 5.

Said chapter is further amended in said article by revising Code Section 16-13-122, relating to content of kratom and required labeling, as follows:

"16-13-122.

(a) All kratom products sold in, or delivered to, this state shall be derived from the natural kratom plant, and any manufactured or processed kratom product, including kratom extracts, shall not be modified, chemically or otherwise, processed, synthesized, or otherwise treated in any way that increases the levels of mitragynine or 7-hydroxymitragynine, beyond those described in subsection (b) of this Code section.

(b) No kratom product sold in, or delivered to, this state shall have a concentration ratio that is:

(1) Greater than 150 mg of mitragynine per serving;

(2) Greater than 0.5 mg of 7-hydroxymitragynine per gram; or

(3) Greater than 1 mg of 7-hydroxymitragynine per serving.

(c) A No processor or retailer shall not prepare, distribute, sell, or expose for sale any of the following:

(1) A kratom product that is adulterated;

(2) A kratom product that contains or uses in its processing or manufacturing a food substance that is not generally recognized as safe in food products;

(3) A kratom product containing any synthetic alkaloids or semisynthetic derivative, alkaloid derivative, analog, concentration, or metabolite, including synthetic mitragynine, synthetic 7-hydroxymitragynine, or any other synthetically derived compounds of the kratom plant; or

(4) A kratom product in a pressed tablet or compressed pill form or in a form that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, that can be used to produce vapor in a solution or other form, including, but not limited to, any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device and any vapor cartridge or other container of kratom in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or similar product or device; or

(5) A kratom product in any container, pouch, bottle, or packaging that contains more than one serving of such product.

(d) A processor shall maintain a registered agent in this state for service of process for the entire duration of such entity's engagement in the business of a processor.

(e) Kratom packaging shall be accompanied by a label bearing the following information prior to its sale in this state:

(1) Clearly labeled ingredients;

(2) That the sale or transfer possession of kratom to another person under 21 years of age is prohibited;

(3) The amount in milligrams of mitragynine and 7-hydroxymitragynine per serving contained in such product;

(4) The total amount in milligrams of mitragynine and 7-hydroxymitragynine contained in the packaging for such product;

(5) The common or usual name of each ingredient used in the manufacture of such product, listed in descending order of predominance;

(6) The name, physical address, and principal mailing address of the manufacturer or the person responsible for distributing such product;

(7) Clear and adequate directions for the consumption of such product, including the recommended serving size and the time frame within which safe consumption should occur;

(8) Any precautionary statements as to the safety and effectiveness of such product, including a warning that, but not limited to, the following statements in large boldface type:

(A) A a consumer should consult their his or her physician on questions about use of kratom and kratom products,;

(B) A licensed pharmacist is available to answer any questions about the use of kratom and kratom products and the risk of interactions with prescription drugs and contraindications for certain conditions, illnesses, or diseases;

(C) The use of kratom or kratom products during pregnancy is not considered safe and is strongly associated with serious adverse effects; and

(D) Kratom and kratom products are state that the product is not intended to 'diagnose, treat, cure or prevent any disease'; and

(9) A statement that a kratom product label is prohibited from making any therapeutic claims unless approved by the United States Food and Drug Administration. The Georgia Poison Center Helpline 1-800-222-1222.

(f)(1) A processor who knowingly or with criminal negligence commits an act in violation of this Code section shall, upon a first conviction thereof, be guilty of a misdemeanor of a high and aggravated nature, and upon a subsequent conviction, be guilty of a felony, and shall be punished by imprisonment for not less than one year nor more than 15 years, by a fine not to exceed $100,000.00, or both.

(2) A processor who negligently commits an act in violation of this Code section shall be guilty of a misdemeanor and subject to a fine not to exceed $1,000.00.

(3) A processor whose label falsely declares or conceals the presence or concentration of mitragyinine or 7-hydroxymitragyinine shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than 15 years, by a fine not to exceed $100,000.00, or both.

(g)(1) A retailer who knowingly or with criminal negligence commits an act in violation of subsection (a), (b), (c), or (e) of this Code section shall, upon a first conviction thereof, be guilty of a misdemeanor of a high and aggravated nature, and upon a subsequent conviction, be guilty of a felony, and shall be punished by imprisonment for not less than one year nor more than 15 years, by a fine not to exceed $100,000.00, or both.

(2) A retailer who negligently commits an act in violation of subsection (a), (b), (c), or (e) of this Code section shall be guilty of a misdemeanor; provided, however, that, for a conviction of a first offense, such individual shall be punished by a fine not to exceed $250.00; for a conviction of a second offense, such individual shall be punished by a fine of up to $500.00; and for a conviction of a third offense, such individual shall be punished by a fine of up to $1,000.00; provided, further, that upon each subsequent conviction after a third conviction, such individual shall be guilty of a high and aggravated misdemeanor and shall be imprisoned for not less than ten days nor more than 12 months and punished by a fine of not less than $1,000.00 nor more than $5,000.00.

(3) A retailer shall have a defense to prosecution under this subsection if such retailer proves by a preponderance of the evidence that the retailer relied in good faith upon the representations of a processor that the kratom, kratom product, or kratom extract and labeling complied with the provisions of this Code section."

SECTION 6.

Said chapter is further amended in said article by adding a new Code section to read as follows:

"16-13-123.

(a) No person may directly or indirectly advertise a therapeutic benefit of kratom or kratom products.

(b) No person may directly or indirectly advertise or market kratom or kratom products to minors.

(c) It shall be a violation of subsection (b) of this Code section for a person to use any of the following in the advertising, promotion, packaging, or labeling of any kratom or kratom products:

(1) A cartoon;

(2) A superhero;

(3) A video game reference;

(4) An image of a food product primarily intended for minors;

(5) A trademark that imitates or mimics the trademark of a product that has been advertised or marketed primarily to minors;

(6) A symbol or celebrity that is primarily associated with minors or media primarily directed to minors; or

(7) An image of an individual who appears to be under 21 years of age.

(d) It shall be a violation of subsection (b) of this Code section for a person to advertise or promote kratom or a kratom product:

(1) In a newspaper, a magazine, a periodical, or any other publication, including online social media, for which individuals under 21 years of age constitute 15 percent or more of the total audience, as measured by competent and reliable survey evidence;

(2) At a concert, a stadium, a sporting event, or any other public event for which individuals under 21 years of age constitute 15 percent or more of the total audience, as measured by competent and reliable survey evidence; or

(3) On an outdoor billboard or sign board that is within 500 feet of any educational institution, public or private, providing elementary or secondary education to children at any level, kindergarten through grade 12, or the equivalent thereof if grade divisions are not used by such institution.

(e) Any person that commits an act in violation of the provisions of this Code section shall be guilty of a misdemeanor and shall be subject to a fine of $500.00 for each offense. Each advertisement or marketing act in violation of this Code section shall constitute a separate offense."

SECTION 7.

This Act shall become effective on July 1, 2026, and shall apply to offenses committed on or after such date.

SECTION 8.

All laws and parts of laws in conflict with this Act are repealed.