MISSISSIPPI LEGISLATURE
2023 Regular Session
To: Judiciary B
By: Representative Bain
AN ACT TO CREATE THE "MISSISSIPPI TIANEPTINE CONSUMER PROTECTION ACT"; TO DEFINE CERTAIN TERMS RELATING TO THE ACT; TO PROHIBIT A PROCESSOR OR RETAILER FROM PREPARING, DISTRIBUTING, SELLING, OR EXPOSING FOR SALE EITHER A TIANEPTINE EXTRACT THAT CONTAINS CERTAIN LEVELS OF RESIDUAL, OR A TIANEPTINE PRODUCT THAT DOES NOT HAVE ADEQUATE LABELING DIRECTIONS NECESSARY FOR SAFE AND EFFECTIVE USE BY CONSUMERS; TO PROVIDE THAT IT IS UNLAWFUL FOR ANY MINOR TO PURCHASE, USE, POSSESS, OR TRANSPORT A PRODUCT CONTAINING TIANEPTINE WITHIN THE STATE; TO REQUIRE ANY PERSON WHO DISTRIBUTES TIANEPTINE PRODUCTS WITHIN THIS STATE TO POST CONSPICUOUSLY AT EACH LOCATION OF DISTRIBUTION A SIGN THAT IS PLACED IN SUCH A MANNER THAT IT IS LIKELY TO BE READ BY THOSE SEEKING TO PURCHASE OR OBTAIN TIANEPTINE PRODUCTS; TO PROVIDE CIVIL PENALTIES FOR VIOLATIONS OF THIS ACT; TO REQUIRE THE DIVISION TO ADOPT RULES AND REGULATIONS FOR THE ADMINISTRATION AND ENFORCEMENT OF THIS ACT; TO BRING FORWARD SECTION 67-1-37, MISSISSIPPI CODE OF 1972, WHICH RELATES TO THE POWERS AND DUTIES OF THE DIVISION, FOR PURPOSES OF POSSIBLE AMENDMENT; TO ENACT THE "MISSISSIPPI KRATOM CONSUMER PROTECTION ACT" TO REGULATE THE PREPARATION, DISTRIBUTION, AND SALE OF KRATOM PRODUCTS; TO DEFINE TERMS; TO PROHIBIT THE PREPARATION, DISTRIBUTION AND SALE OF ADULTERATED OR CONTAMINATED KRATOM PRODUCTS; TO PRESCRIBE FINES AND PENALTIES FOR VIOLATIONS OF THIS ACT; TO AUTHORIZE THE DEPARTMENT OF HEALTH TO ADMINISTER THE ACT; TO PROVIDE THAT THE PROVISIONS OF THIS ACT DO NOT LIMIT THE AUTHORITY OF A COUNTY OR MUNICIPALITY TO REGULATE TIANEPTINE OR KRATOM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act shall be known and may be cited as the "Mississippi Tianeptine Consumer Protection Act".
SECTION 2. For the purposes of this act, the following words shall have the meanings as defined in this section, unless the context clearly indicates otherwise:
(a) "Division" means the Alcoholic Beverage Control Division of the Department of Revenue.
(b) "Food" means a food, food product, food ingredient, dietary ingredient, dietary supplement, or beverage for human consumption.
(c) "Minor" means a person under the age of twenty-one (21) years.
(d) "Processor" means a person who sells, prepares, manufactures, distributes, or maintains tianeptine products or advertises, represents, or holds him or herself out as selling, preparing, or maintaining tianeptine products.
(e) "Retailer" means any person who sells, distributes, advertises, represents, or holds him or herself out as selling or maintaining tianeptine products.
(f) "Tianeptine product" means a food product or dietary ingredient containing tianeptine, and is manufactured as a powder, capsule, pill, beverage, or other edible form.
SECTION 3. (1) A processor or retailer may not prepare, distribute, sell, or expose for sale either of the following:
(a) A tianeptine extract that contains levels of residual solvents higher than is allowed in United States Pharmacopeia's USP 467.
(b) A tianeptine product that does not have adequate labeling directions necessary for safe and effective use by consumers, including a recommended serving size.
(2) A processor or retailer does not violate this section if it is shown by a preponderance of the evidence that the processor or retailer relied in good faith upon the representations of a manufacturer, processor, packer, or distributor of food represented to be a tianeptine product.
SECTION 4. (1) It is unlawful for any minor to purchase, use, possess, or transport a product containing tianeptine within this state. It is not unlawful for a minor employee of a retailer to handle, transport, or sell a tianeptine product if the minor employee is acting within the line and scope of employment and the retailer, or an employee of the permit holder who is twenty-one (21) years of age or older, is present.
(2) A tianeptine product shall not be distributed at retail through a self-service display.
(3) A retailer shall keep or store a tianeptine product by placing such product behind the counter in an area within the store where the public is not permitted.
SECTION 5. Any person who distributes tianeptine products within this state shall post conspicuously and keep so posted at each location of distribution a sign that is placed in such a manner that it is likely to be read by those seeking to purchase or obtain tianeptine products. Each such sign shall state both of the following:
(a) Mississippi law strictly prohibits the purchase of tianeptine products by persons under the age of twenty-one (21).
(b) Proof of age is required for the purchase of tianeptine products.
SECTION 6. The division may assess a civil penalty against a processor or retailer that violates the provisions of this act as follows:
(a) Not more than One Thousand Dollars ($1,000.00) for a first violation.
(b) Not more than Two Thousand Five Hundred Dollars ($2,500.00) for a second or subsequent violation.
SECTION 7. The division shall adopt rules and regulations for the administration and enforcement of this act, including, but not limited, to the following:
(a) A procedure for a tianeptine processor to register and pay an annual registration fee to the division in order to sell tianeptine products. The registration procedure shall require the tianeptine processor to provide information relating to the facility where the tianeptine products were manufactured, the United States Food and Drug Administration registration for the facility, and the registration with the applicable department regulating agriculture, if applicable, for the manufacturing facility where it is originally processed. The information required for registration may also include the following:
(i) The name and address of the tianeptine processor, and the name and address of the person whose name will appear on the label, if other than the tianeptine processor;
(ii) The names of each tianeptine product included in the registration;
(iii) The tianeptine type and recommended usage, including directions for use or serving size for each tianeptine product;
(iv) The approved tianeptine delivery form;
(v) The weights or volumes, as appropriate, of the package of tianeptine product offered for sale, for the recommended usage for an individual serving size, and for the entire package;
(vi) A label may not contain claims that the tianeptine product is intended to diagnose, treat, cure, or prevent any medical condition or disease;
(vii) A complete copy of the label that will appear on the tianeptine product or the document that can be reached via scannable bar code, QR Code, or web address;
(viii) A written certification that raw materials used in manufacturing tianeptine products made available for sale fully comply with the applicable product limitations in this act; and
(ix) A certificate of analysis for the tianeptine product from an independent third-party laboratory holding a
current International Organization for Standardization 17025:2017 accreditation.
(b) Upon demand, a tianeptine processor shall provide to the division its current certificate of analysis for any tianeptine product for which an adverse event is filed, if the division elects to open an investigation.
SECTION 8. Section 67-1-37, Mississippi Code of 1972, is brought forward as follows:
67-1-37. The Department of Revenue, under its duties and powers with respect to the Alcoholic Beverage Control Division therein, shall have the following powers, functions and duties:
(a) To issue or refuse to issue any permit provided for by this article, or to extend the permit or remit in whole or any part of the permit monies when the permit cannot be used due to a natural disaster or act of God.
(b) To revoke, suspend or cancel, for violation of or noncompliance with the provisions of this article, or the law governing the production and sale of native wines or native spirits, or any lawful rules and regulations of the department issued hereunder, or for other sufficient cause, any permit issued by it under the provisions of this article. The department shall also be authorized to suspend the permit of any permit holder for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a permit for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a permit suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a permit suspended for that purpose, shall be governed by Section 93-11-157 or Section 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or Section 93-11-163 and any provision of this article, the provisions of Section 93-11-157 or Section 93-11-163, as the case may be, shall control.
(c) To prescribe forms of permits and applications for permits and of all reports which it deems necessary in administering this article.
(d) To fix standards, not in conflict with those prescribed by any law of this state or of the United States, to secure the use of proper ingredients and methods of manufacture of alcoholic beverages.
(e) To issue rules regulating the advertising of alcoholic beverages in the state in any class of media and permitting advertising of the retail price of alcoholic beverages.
(f) To issue reasonable rules and regulations, not inconsistent with the federal laws or regulations, requiring informative labeling of all alcoholic beverages offered for sale within this state and providing for the standards of fill and shapes of retail containers of alcoholic beverages; however, such containers shall not contain less than fifty (50) milliliters by liquid measure.
(g) Subject to the provisions of subsection (3) of Section 67-1-51, to issue rules and regulations governing the issuance of retail permits for premises located near or around schools, colleges, universities, churches and other public institutions, and specifying the distances therefrom within which no such permit shall be issued. The Alcoholic Beverage Control Division shall not issue a package retailer's or on-premises retailer's permit for the sale or consumption of alcoholic beverages in or on the campus of any public school, community or junior college, college or university.
(h) To adopt and promulgate, repeal and amend, such rules, regulations, standards, requirements and orders, not inconsistent with this article or any law of this state or of the United States, as it deems necessary to control the manufacture, importation, transportation, distribution, delivery and sale of alcoholic liquor, whether intended for beverage or nonbeverage use in a manner not inconsistent with the provisions of this article or any other statute, including the native wine and native spirit laws.
(i) To call upon other administrative departments of the state, county and municipal governments, county and city police departments and upon prosecuting officers for such information and assistance as it may deem necessary in the performance of its duties.
(j) To prepare and submit to the Governor during the month of January of each year a detailed report of its official acts during the preceding fiscal year ending June 30, including such recommendations as it may see fit to make, and to transmit a like report to each member of the Legislature of this state upon the convening thereof at its next regular session.
(k) To inspect, or cause to be inspected, any premises where alcoholic liquors intended for sale are manufactured, stored, distributed or sold, and to examine or cause to be examined all books and records pertaining to the business conducted therein.
(l) To investigate the administration of laws in relation to alcoholic liquors in this and other states and any foreign countries, and to recommend from time to time to the Governor and through him to the Legislature of this state such amendments to this article, if any, as it may think desirable.
(m) To designate hours and days when alcoholic beverages may be sold in different localities in the state which permit such sale.
(n) To assign employees to posts of duty at locations where they will be most beneficial for the control of alcoholic beverages and to take any other action concerning persons employed under this article as authorized by law and taken in accordance with the rules, regulations and procedures of the State Personnel Board.
(o) To enforce the provisions made unlawful by Chapter 3, Title 67 and Section 97-5-49.
(p) To delegate its authority under this article to the Alcoholic Beverage Control Division, its director or any other officer or employee of the department that it deems appropriate.
(q) To prescribe and charge a fee to defray the costs of shipping alcoholic beverages, provided that such fee is determined in a manner provided by the department by rules and/or regulations adopted in accordance with the Mississippi Administrative Procedures Law.
SECTION 9. (1) This section shall be known and may be cited as the "Mississippi Kratom Consumer Protection Act."
(2) For purposes of this act, the following words shall have the meanings ascribed herein unless the context otherwise requires:
(a) "Department" means the Department of Revenue.
(b) "Processor" means a person that sells, prepares, manufactures, distributes or maintains kratom products, or advertises, represents or holds itself out as selling, preparing, or maintaining kratom products.
(c) "Food" means food, food product, food ingredient, dietary ingredient, dietary supplement or beverage for human consumption.
(d) "Kratom product" means a food product or dietary ingredient:
(i) Containing any part of the leaf of the plant Mitragyna species or an extract of it; and
(ii) Manufactured as a powder, capsule, pill, beverage or other consumable form.
(e) "Retailer" means any person that sells, distributes, advertises, represents or holds itself out as selling or maintaining kratom products.
(3) A processor or retailer shall not prepare, distribute, sell or offer for sale any of the following:
(a) A kratom product that is adulterated with a dangerous nonkratom substance. A kratom product is adulterated with a dangerous nonkratom substance if the kratom product is mixed or packed with a nonkratom substance and that substance affects the quality or strength of the kratom product to such a degree as to render the kratom product injurious to a consumer.
(b) A kratom product that is contaminated with a dangerous nonkratom substance. A kratom product is contaminated with a dangerous nonkratom substance if the kratom product contains a poisonous or otherwise deleterious nonkratom ingredient, including, but not limited to, the substances listed in Sections 41-29-113, 41-29-115, 41-29-117, 41-29-119 and 41-29-121.
(c) A kratom product containing a level of 7-hydroxymitragynine in the alkaloid fraction that is greater than two percent (2%) of the overall alkaloid composition of the product.
(d) A kratom product containing any synthetic alkaloids, including synthetic mitragynine, synthetic 7-hydroxymitragynine, or any other synthetically derived compounds of the kratom plant.
(e) A kratom product that does not provide adequate labeling necessary for safe and effective use by consumers, including a recommended serving size.
(4) A processor or retailer shall not distribute, sell or expose for sale a kratom product to an individual under twenty-one (21) years of age.
(5) (a) A processor or retailer that violates Section 3 of this act is subject to an administrative fine of not more than One Thousand Dollars ($1,000.00) for the first offense and not more than Five Thousand Dollars ($5,000.00) for any second or subsequent offense. Any person or entity fined under this subsection (1) shall have all of the administrative and judicial remedies available under law.
(b) A retailer does not violate subsection (3) of this section if it is shown by a preponderance of the evidence that the retailer relied in good faith upon the representations of a manufacturer, processor, packer or distributor of food represented to be a kratom product.
(6) The department shall administer the provisions of this section. The department shall have authority to promulgate, from time to time, such rules and regulations as are necessary for the enforcement of the provisions of this section.
SECTION 10. (1) The provisions of this act shall not be construed on or after the effective date of this act to prohibit any county or municipality from banning, prohibiting or otherwise regulating the distribution, sell or exposure of tianeptine or kratom.
(2) The provisions of this act shall not be construed to revise, void or in any way limit any rule, ordinance or regulation that was enacted before the effective date of this act by a county or municipality to ban, prohibit or otherwise regulate the distribution, sell or exposure of tianeptine or kratom.
SECTION 11. This act shall take effect and be in force from and after July 1, 2023.