Legislation Document

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Part II, Title 16 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

Chapter 30S. Kratom Consumer Protection Act

§ 3001S. Definitions.

For the purposes of this chapter:

(1) “Kratom” means any part of the plant Mitragyna speciosa L., whether growing or not, including the seeds, leaves, stems, roots, extracts, resins, and compounds thereof, and any salt, compound, derivative, mixture, preparation, synthetic equivalent, isomer, or salt of an isomer thereof.

(2) “Kratom alkaloid” means any indole based alkaloid naturally occurring in Mitragyna speciosa, including mitragynine and 7 hydroxymitragynine, and any salt, isomer, or salt of an isomer of such an alkaloid.

(3) “Kratom product” means a product meant for human consumption, in any form, including liquid, pill, capsule, tablet, powder, gummy, shot, beverage, or products marketed for human consumption, containing any part of the leaf of the plant Mitragyna speciosa, any alkaloid derived from Mitragyna speciosa, or substance manufactured to mimic any naturally occurring alkaloid from the plant Mitragyna speciosa, or any combination of such substances.

§ 3002S. Sale, provision, or marketing of kratom or kratom products to minors; penalties.

(a) A person is guilty of selling, providing, or marketing kratom or kratom products to a minor if the person sells, otherwise furnishes, or markets kratom or kratom products to a person under 21 years of age.

(b) Marketing of kratom or a kratom product is the use of any of the following in the advertising, promotion, packaging, or labeling of kratom or a kratom product:

(1) A cartoon.

(2) A superhero.

(3) A video game reference.

(4) An image of a food product primarily intended for a minor.

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

(6) A symbol or celebrity that is primarily associated with a minor or media primarily directed to a minor.

(7) An image of an individual who appears to be under the age of 27.

(8) Products stored or displayed in an area accessible to non-employee individuals under 21.

(9) Claims of intoxication or changes in mental status that are attractive to children.

(b) In any prosecution for an offense under this chapter, it is an affirmative defense that the individual, who has not reached the age of 21 years, presented to the accused, identification, with a photograph of the individual affixed thereon, which presented information that would lead a reasonable person to believe the individual was 21 years of age or older.

Section 2. The Division of Alcohol & Tobacco Enforcement, in consultation with the Department of Health and Social Services' Division of Public Health and Division of Substance Abuse and Mental Health, must prepare a report on kratom testing capabilities and potential licensing requirements for retailers selling kratom products. The report must specifically address natural kratom, synthetic kratom, and 7-hydroxymitragynine concentrated products, examining the distinctions in potency and public health risk among each category and the testing methodologies necessary to identify the products. The report must evaluate and provide recommendations on: (1) retail licensing structures and requirements; (2) compliance check authority and enforcement mechanisms; (3) administrative penalties for violations; (4) product testing requirements; (5) regulation of kratom, synthetic kratom, and concentrated 7-hydroxymitragynine products, including appropriate restrictions based on potency and public health risk; and (6) funding and staffing needs to support effective enforcement. The report must be provided to the Governor, the Director and Librarian of the Division of Legislative Services, and the Secretary of the Senate and the Chief Clerk of the House of Representatives for distribution to all members of the General Assembly by January 1, 2027.

SYNOPSIS

House Substitute No. 1 for House Bill No. 332 prohibits the selling, providing, or marketing of kratom or a kratom product to an individual under the age of 21. A person who violates the prohibition is guilty of a class B misdemeanor.

It also requires The Division of Alcohol & Tobacco Enforcement and the Department of Health and Social Services to provide a report on kratom testing capabilities and potential licensing requirements for retailers selling kratom products to the Governor and General Assembly by January 1, 2027.

This Act requires a greater than majority vote for passage because § 28 of Article IV of the Delaware Constitution requires the affirmative vote of two-thirds of the members elected to each house of the General Assembly to give jurisdiction to inferior courts or justices of the peace of “such … misdemeanors as the General Assembly may from time to time … prescribe.”