Bill Text: HI HB1698 | 2022 | Regular Session | Introduced
Bill Title: Relating To Tobacco Products.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Introduced - Dead) 2022-01-26 - Referred to HHH, CPC, referral sheet 2 [HB1698 Detail]
Download: Hawaii-2022-HB1698-Introduced.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
1698 |
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THIRTY-FIRST LEGISLATURE, 2022 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to tobacco products.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that tobacco use remains the leading cause of preventable disease and death in the United States and Hawaii. Tobacco use is a serious public health problem that results in human suffering and loss of life and causes financial burdens on society and the health care system. Annually, $526,000,000 in health care costs are directly attributed to smoking in the State.
The legislature notes that ninety-five per cent of all smokers start before the age of twenty-one. Eighty-one per cent of youth who have ever used a tobacco product report that the first tobacco product they used was flavored. Flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke, thereby increasing the appeal of tobacco products.
The legislature further finds that, while there has been a decline in the use of combustible cigarettes over the last decade, there has been a dramatic increase in the use of electronic smoking devices, including electronic cigarettes, by Hawaii's youth. Vaping in Hawaii is at an epidemic level. Between 2011 to 2015, the proportion of youth experimenting with electronic smoking devices increased six-fold among middle school youth and four-fold among high school youth. In 2019, thirty-one per cent of middle school students and forty-eight per cent of public high school students tried electronic smoking devices. Today, eighteen per cent of middle school students and almost a third of high school students vape. Current use of electronic smoking devices by county is even more problematic, with figures exceeding thirty per cent in Hawaii, Maui, and Kauai counties. These rates are higher than the national average, demonstrate a disturbing trend of youth nicotine use, and threaten to undermine the historic decline in combustible cigarette use.
The popularity of electronic cigarettes among youth is especially concerning, as these products contain nicotine salts. The United States Surgeon General noted in the 2016 report titled "E-Cigarette Use Among Youth and Young Adults" that "[b]ecause the adolescent brain is still developing, nicotine use during adolescence can disrupt the formation of brain circuits that control attention, learning, and susceptibility to addiction."
The legislature notes that in 2009, a federal law, the Family Smoking Prevention and Tobacco Control Act, prohibited characterizing flavors, including fruit and candy flavorings, in cigarettes; however, it did not ban menthol in cigarettes or the use of characterizing flavors in other tobacco products. Only cigarettes, roll-your-own tobacco, and smokeless tobacco are subject to regulation under the Act. The tobacco industry and electronic smoking device industry have since significantly increased the introduction and marketing of flavored non-cigarette tobacco products, especially electronic smoking devices.
It is no coincidence that the number of electronic cigarette flavors has skyrocketed in recent years, with more than fifteen thousand unique electronic cigarette flavors identified in a 2018 study. Hawaii has experienced the heightened promotion of electronic cigarette products that offer flavors designed to appeal to the State's youth, such as candy, fruit, chocolate, mint, Kona coffee, Maui mango, shaka strawberry, and Molokai hot bread. Additionally, many of the packages are designed to resemble popular candies, such as Jolly Ranchers and Sour Patch Kids.
The legislature additionally finds that young people and people of color are disproportionately using flavored tobacco products, including menthol. Menthol, in particular, is used by the tobacco industry because it has a cooling and numbing effect and can reduce the throat irritation from smoking, thus making menthol cigarettes an appealing option for youth who are initiating tobacco use. The 2021 National Youth Tobacco Survey found that eighty-five per cent of youth electronic cigarette users reported using flavored products, with fruit, sweet flavors like candy or desserts, mint, and menthol reported as the most popular flavors. According to the 2010 study, "Smoking and Tobacco Use in Hawaii", seventy-eight per cent of Native Hawaiian and Pacific Islander adult smokers consume menthol cigarettes, compared to forty-two per cent of Caucasian adult smokers. A 2018 study also indicated that sixty-seven per cent of Filipino adult smokers preferred menthol cigarettes. A recent report also estimates that ending the sale of flavored tobacco in Hawaii would save the State at least $48,000,000 in long-term health care costs, prevent seven hundred premature smoking-related deaths, prompt over three thousand menthol cigarette smokers to quit, and prevent youth from initiating smoking with menthol cigarettes.
Given the significant threat to public health posed by flavored tobacco products, including those with menthol, five states, California, Massachusetts, New Jersey, New York, and Rhode Island, and hundreds of localities have enacted legislation to prohibit the sale of flavored tobacco products, including menthol. The legislature concludes that Hawaii should also take steps to regulate flavored tobacco products to reduce tobacco-related health disparities and address the youth vaping epidemic.
Accordingly, the purpose of this Act is to prohibit the sale or distribution in Hawaii of all flavored tobacco products, including products with menthol.
SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§712- Sale
of flavored tobacco products prohibited. (1) Beginning January
1, 2023, it shall be unlawful for any retailer or any agents or employees of
the retailer to sell, offer for sale, or possess with the intent to sell
or offer for sale, a flavored tobacco product.
(2) A statement or claim directed to consumers or
the public that the tobacco product has or produces a characterizing flavor, including
but not limited to text, color, or images on the tobacco product's labeling or
packaging that is used to explicitly or implicitly communicate that the tobacco
product has a characterizing flavor made by a manufacturer or an agent or
employee of the manufacturer in the course of the person's agency or
employment, is prima facie evidence that the tobacco product is a flavored tobacco
product.
(3) Any flavored tobacco product found in the
retailer's possession that is in violation of this section shall be considered
contraband, promptly seized, summarily forfeited to the State, and destroyed by
law enforcement following the conclusion of an administrative or judicial
proceeding finding that a violation of this section has been committed and
shall not be subject to the procedures set forth in chapter 712A.
(4)
Any retailer who violates this section shall
be fined $1,000 for the first offense, $2,000 for the second offense, and $5,000
for a third or subsequent offenses. In addition,
a retailer shall be responsible for all costs associated with the disposal of any
confiscated products found to be in violation of this section.
(5)
Notwithstanding any other law to the
contrary, any county may adopt a rule or ordinance that places greater
restrictions on the access to flavored tobacco products than provided for in
this section. In the case of a conflict between
the restrictions in this section and any county rule or ordinance regarding
access to flavored tobacco products, the more stringent restrictions shall
prevail.
(6) For the purposes of this section:
"Characterizing
flavor" means a
taste or aroma, or both, other than the taste or aroma of tobacco, imparted by
a tobacco product or any byproduct produced by the tobacco product that is distinguishable
by an ordinary consumer. Characterizing
flavors include but are not limited to tastes or aromas relating to any candy, chocolate,
vanilla, honey, fruit, cocoa, coffee, dessert, alcoholic beverage, menthol,
mint, wintergreen, herb, or spice. A
tobacco product shall not be determined to have a characterizing flavor solely
because of the use of additives or flavorings or the provision of ingredient
information in the absence of a distinguishable taste or aroma, or both.
"Cigarette" means any roll for
smoking made wholly or in part of tobacco, irrespective of size and shape and
whether or not the tobacco is flavored, adulterated, or mixed with any other ingredient,
the wrapper or cover of which is made of paper or any other substance or
material except tobacco.
"Constituent" means any
ingredient, substance, chemical, or compound, other than tobacco, water, or
reconstituted tobacco sheet, that is added by the manufacturer to a tobacco
product during the processing, manufacture, or packing of the tobacco product.
"Distinguishable" means
perceivable by either the sense of smell or taste.
"Electronic smoking device" has
the same meaning as defined in section 712-1258(7).
"Entity" means one or more
individuals, a limited liability company, corporation, a partnership, an
association, or any other type of business.
"Flavored tobacco product"
means any tobacco product that contains a constituent that imparts a
characterizing flavor.
"Labeling" means written,
printed, pictorial, or graphic matter upon a tobacco product or any of its
packaging.
"Packaging" means a pack, box,
carton, or container of any kind, or if no other container, any wrapping,
including cellophane, in which a tobacco product is sold or offered for sale to
a consumer.
"Retailer" means an entity who
sells, offers for sale, or exchanges or offers to exchange tobacco products to
consumers for any form of consideration.
"Retailer" includes the owner of a tobacco retail location.
"Tobacco product" has the same
meaning as defined in section 712-1258(7).
"Tobacco retail location" means
any premises where tobacco products are sold or distributed to a consumer,
including but not limited to any store, bar, lounge, cafe, stand, outlet,
vehicle, cart, location, vending machine, or structure."
SECTION 3. Section 712-1258, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:
(7) For the purposes of this section:
"Electronic smoking
device" means any electronic product, or part thereof, whether for one-time use or reusable,
that can be used to [aerosolize and] deliver nicotine or [other
substances] another substance to the person inhaling from the
device, including but not limited to an electronic cigarette, electronic cigar,
electronic cigarillo, [or] electronic pipe, vaping pen, hookah pen, or any other similar device that relies
on vaporization or aerosolization, and any cartridge or other
component of the device or [related] product. "Electronic
smoking device" includes any liquid or gel capable of use in an electronic
smoking device that can be used by a person to simulate smoking in the delivery
of nicotine or any other substance intended for human consumption through inhalation
of favor or aerosol from the product. "Electronic
smoking device" does not include cigarettes; drugs, devices, or combination
products approved for sale by the United States Food and Drug Administration, as
those terms are defined in the Federal Food, Drug, and Cosmetic Act; or medical
cannabis or manufactured cannabis products under chapter 329D, including
devices used to aerosolize, inhale, or ingest manufactured cannabis products manufactured
or distributed in accordance with section 329D-10(a).
"Tobacco product" means
any product containing, made of, or derived
from tobacco [that contains] or nicotine [or other substances
and] that is intended for human consumption or is likely to be consumed,
whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by
other means. "Tobacco product"
includes but is not limited to a cigarette, cigar, pipe tobacco, chewing
tobacco, snuff, snus, or an electronic smoking device. "Tobacco product" does not include
drugs, devices, or combination products approved for sale by the United States
Food and Drug Administration, as those terms are defined in the Federal Food, Drug,
and Cosmetic Act."
SECTION 4. Section 328J-11.5, Hawaii Revised Statutes, is repealed.
["[§328J-11.5] Statewide
concern. (a) Sales of cigarettes, tobacco products, and
electronic smoking devices are a statewide concern. It is the intent of the legislature to
regulate the sale of cigarettes, tobacco products, and electronic smoking
devices in a uniform and exclusive manner.
(b) All local ordinances or regulations that
regulate the sale of cigarettes, tobacco products, and electronic smoking
devices are preempted, and existing local laws and regulations conflicting with
this chapter are null and void.
(c) Nothing in this chapter shall be construed to
limit a county's authority under section 328J-15."]
SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on January 1, 2023.
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INTRODUCED BY: |
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Report Title:
Flavored Tobacco Products; Sale; Ban
Description:
Prohibits the sale of all flavored tobacco products. Establishes fines and penalties for violations. Effective 01/01/2023.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
