Bill Text: HI SB1375 | 2024 | Regular Session | Introduced
Bill Title: Relating To Health.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2023-12-11 - Carried over to 2024 Regular Session. [SB1375 Detail]
Download: Hawaii-2024-SB1375-Introduced.html
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THE SENATE |
S.B. NO. |
1375 |
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THIRTY-SECOND LEGISLATURE, 2023 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO HEALTH.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
Tobacco
products are addictive and inherently dangerous, causing many different types
of cancer, heart disease, and other serious illnesses. Hawaii has a substantial interest in reducing
the number of individuals of all ages who use tobacco products, and a
particular interest in protecting adolescents from tobacco dependence and the
illnesses and premature death associated with tobacco use.
Electronic
smoking devices, also known as e-cigarettes, are battery-operated products
designed to deliver nicotine, flavor, and other chemicals to the user. Electronic
smoking devices have quickly evolved since entering the United States
marketplace in 2007. Initial products
were disposable, resembled the size and shape of conventional cigarettes, and
used free-base nicotine. However, newer
products are rechargeable, resemble common objects, including flash drives and
highlighters, and typically deliver nicotine salts, which allow higher levels
of nicotine to be inhaled more easily by the user.
The electronic smoking device industry,
which includes the production of e-liquid in a variety of forms, has grown
rapidly. In the September 18, 2020 Morbidity and
Mortality Weekly Report, the Centers for Disease Control and Prevention
reported that electronic smoking devices have been the most commonly used
tobacco product among United States youths since 2014. The
United States Surgeon General first issued a warning in 2016 about the dangers
of these products, stating that use among the nation's youth and young adults
had become a major public health concern.
In response to the continuing rise in use, in 2018, the Surgeon General
made the unprecedented move of classifying the danger of youth usage of electronic smoking devices as an epidemic in the
Surgeon General's Advisory on E-Cigarette
Use Among Youth.
The 2019 Youth Risk Behavior Survey issued
by the Centers for Disease Control and Prevention reported that the use of
electronic smoking devices among high school seniors increased nationally from
24.1 per cent in 2015 to 37.7 per cent in 2019. The same survey reported that in Hawaii, 48.3
per cent of public high school students report having experimented with electronic smoking devices, and 30.6 per cent are
current users of electronic smoking devices.
Further, in the 2016 report titled "E-Cigarette
Use Among Youth and Adults" (Surgeon General's Report), the United States
Surgeon General stated that electronic smoking device use among youth and young
adults is also strongly associated with the use of other tobacco products, including
combustible tobacco products.
Toxicologists have warned that e-liquids
pose significant risks to public health, particularly to children. The 2016 Surgeon General's Report further states
that if the contents of prefilled cartridges or bottles of e-liquids containing
nicotine are ingested, they may cause acute toxicity and possibly death.
The Centers for Disease Control and Prevention reported in the September 18, 2020 Morbidity and Mortality Weekly Report that from November of 2016 to August of 2019, total electronic smoking device unit sales in the United States increased nearly three hundred per cent. Continued monitoring of electronic smoking device sales and use is critical to inform strategies to minimize risk among Hawaii's most vulnerable youth users.
The 2016 Surgeon General's Report found that there are numerous policies and practices that can be implemented at state and local levels to address electronic smoking device use among youth and young adults, including preventing access to electronic smoking devices by youth, increasing taxes upon electronic smoking devices, increasing prices of retail licensure, and regulating electronic smoking device marketing.
Additionally, the rapid growth of the electronic smoking device industry, including retail businesses selling electronic smoking devices or e-liquid, necessitates further regulations to protect consumers, such as requiring retailers of e-liquid to obtain a retail tobacco permit. The 2016 Surgeon General's Report found that children and youth are especially vulnerable to the targeted online social and digital media marketing of inexpensive electronic smoking devices offered in enticing flavors and concealable forms.
The United States Food and Drug Administration has expanded its regulatory authority to all tobacco products, including electronic smoking devices, cigars, and hookah and pipe tobacco. While there is federal consensus that electronic smoking devices are tobacco products, Hawaii has no state tobacco tax attached to electronic smoking devices and e-liquids. While the use of electronic smoking devices and e-liquids also carry the risk of adverse health consequences, these products are currently taxed at a much lower rate than cigarettes. Decades of research have shown that increasing cigarette prices, such as through cigarette taxes, can reduce the rate of smoking by adult and youth smokers. As outlined in the 2016 Surgeon General's Report, current findings show this public health policy can likewise be applied to electronic smoking devices and e-liquids to reduce youth consumption.
Taxing e-liquids and electronic smoking devices, as tobacco products, will provide pricing parity between products on the market. Pricing parity among tobacco products on the market will result in positive health benefits, including encouraging young, price-conscious consumers to quit, sustaining cessation, preventing youth initiation, and reducing consumption among those who continue to use them.
The purposes of this Act are to:
(1) Establish the criminal offense of unlawful shipment of tobacco products;
(2) Include "e-liquid" and "electronic smoking devices" within the definition of "tobacco products" as used in the cigarette tax and tobacco tax law, thereby:
(A) Subjecting e-liquids and electronic smoking devices to the excise tax on tobacco products;
(B) Requiring retailers of e-liquids or electronic smoking devices to obtain a retail tobacco permit to sell, possess, keep, acquire, distribute, or transport e-liquids or electronic smoking devices;
(C) Prohibiting persons from engaging in the business of a wholesaler or dealer of e-liquids or electronic smoking devices without first obtaining a license from the department of taxation; and
(D) Applying other requirements of chapter 245, Hawaii Revised Statutes to e-liquids and electronic smoking devices;
(3) Increase the license fee for persons engaged as wholesalers or dealers of cigarettes and tobacco products;
(4) Increase the retail tobacco permit fee for retailers engaged in the retail sale of cigarettes and tobacco products; and
(5) Repeal various statutory provisions relating to electronic smoking devices to avoid conflict with taxation and regulation under chapter 245, Hawaii Revised Statutes.
SECTION 2. Chapter 245, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§245- Unlawful shipment of tobacco products;
penalty; liability for unpaid taxes.
(a) A person or entity commits
the offense of unlawful shipment of tobacco products if the person or entity:
(1) Is engaged in the business of
selling tobacco products; and
(2) Ships or causes to be shipped any
tobacco products to a person or entity in this State that is not a licensee
under this chapter.
(b) This section shall not apply to the shipment
of tobacco products if any of the following conditions are met:
(1) The tobacco products are exempt from
taxes as provided by section 245-3(b); or
(2) All applicable Hawaii taxes on the
tobacco products are paid in accordance with the requirements of this chapter.
(c) Unlawful shipment of tobacco products is a
class C felony if the person or entity knowingly ships or causes to be shipped
tobacco products with a value of $10,000 or more in violation of subsection
(a).
(d) Unlawful shipment of tobacco products is a
misdemeanor if the person or entity knowingly ships or causes to be shipped
tobacco products with a value of less than $10,000 in violation of subsection
(a).
(e) For purposes of this section, a person or
entity is a licensee if the person or entity's name appears on a list of
authorized licensees published by the department.
(f) Notwithstanding the existence of other
remedies at law, any person or entity that purchases, uses, controls, or
possesses any tobacco products for which the applicable taxes imposed under
title 14 have not been paid, shall be liable for the applicable taxes, plus any
penalty and interest as provided for by law.
(g) For the purpose of this section,
"value" means the retail fair market value at the time of the
offense."
SECTION 3. Section 245-1, Hawaii Revised Statutes, is amended as follows:
1. By adding two new definitions to be appropriately inserted and to read:
""Electronic smoking device" means any
device that may be used to deliver any aerosolized or vaporized substance to
the person inhaling from the device, including, but not limited to, an
electronic cigarette, electronic cigar, electronic pipe, vape pen, or electronic
hookah. "Electronic smoking device"
includes any component, part, or accessory of the device, and also includes any
substance that may be aerosolized or vaporized by such device, whether or not
the substance contains nicotine. "Electronic
smoking device" does not include drugs, devices, or combination products
authorized for sale by the United States Food and Drug Administration, as those
terms are defined in the Federal Food, Drug, and Cosmetic Act.
"E-liquid" means any liquid or like substance, which may or may not contain nicotine, that is designed or intended to be used in an electronic smoking device, whether or not packaged in a cartridge or other container. "E-liquid" does not include prescription drugs; cannabis for medical use pursuant to chapter 329 or manufactured cannabis products pursuant to chapter 329D; or medical devices used to aerosolize, inhale, or ingest prescription drugs, including manufactured cannabis products manufactured or distributed in accordance with section 329D-10(a)."
2. By amending the definition of "tobacco products" to read:
""Tobacco
products" means [tobacco in any form,]:
(1) Any product containing, made of, or
derived from tobacco or nicotine, other than cigarettes or little cigars,
that is [prepared or] intended for human consumption [or for
personal use by humans,] or is likely to be consumed whether inhaled, absorbed,
or ingested by any other means, including but not limited to large
cigars and any substitutes thereof other than cigarettes that bear the
semblance thereof, and including snuff, snus, chewing or
smokeless tobacco, and smoking or pipe tobacco[.];
(2) Any electronic smoking device as defined in this section and
any substance, including e-liquids, that may be aerosolized or vaporized by
such device, whether or not the substance contains nicotine; or
(3) Any component, part, or accessory of
any item described in paragraph (1) or (2), whether or not any of these
contains tobacco or nicotine, including but not limited to filters, rolling
papers, blunt or hemp wraps, hookahs, and pipes.
"Tobacco
products" does not mean drugs, devices, or combination products authorized
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 245-2, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) The license shall be issued by the department
upon application therefor, in such form and manner as shall be required by rule
of the department, and the payment of a fee of [$2.50,] $250, and
shall be renewable annually on July 1 for the twelve months ending the
succeeding June 30."
SECTION 5. Section 245-2.5, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) to read as follows:
"(c) The
retail tobacco permit shall be issued by the department upon application by the
retailer in the form and manner prescribed by the department, and the payment
of a fee of [$20.] $50.
Permits shall be valid for one year, from December 1 to November 30, and
renewable annually. Whenever a retail
tobacco permit is defaced, destroyed, or lost, or the permittee relocates the
permittee's business, the department may issue a duplicate retail tobacco
permit to the permittee for a fee of $5 per copy.
(d)
A separate retail tobacco permit shall be obtained for each place of
business owned, controlled, or operated by a retailer. In seeking a retail tobacco permit, the
applicant shall specify whether each place of business sells e-liquid,
electronic smoking devices, or both.
A retailer that owns or controls more than one place of business may
submit a single application for more than one retail tobacco permit. Each retail tobacco permit issued
shall clearly describe the place of business where the operation of the
business is conducted[.] and whether the place of business sells e-liquid,
electronic smoking devices, or both."
SECTION 6. Chapter 28, part XII, Hawaii Revised Statutes, is repealed.
SECTION 7. Section 245-17, Hawaii Revised Statutes, is repealed.
["[§245-17] Delivery sales. (a) No person shall conduct a delivery sale or
otherwise ship or transport, or cause to be shipped or transported, any
electronic smoking device in connection with a delivery sale to any person
under the age of twenty-one.
(b) A person who makes delivery sales shall not
accept a purchase or order from any person without first obtaining the full
name, birth date, and address of that person and verifying the purchaser's age
by:
(1) An independently operated
third-party database or aggregate of databases that are regularly used by
government and businesses for the purpose of age and identity verification and
authentication;
(2) Receiving a copy of a government
issued identification card from the purchaser; or
(3) Requiring age and signature
verification in the shipment process and upon and before actual delivery.
(c) The purchaser shall certify their age before
completing the purchaser's order.
(d) Any person who violates this section shall be
fined $500 for the first offense. Any
subsequent offenses shall subject the person to a fine of no less than $500 but
no more than $2,000. Any person under
twenty-one years of age who violates this section shall be fined $10 for the
first offense; provided that any subsequent offense shall subject the person to
a fine of $50, no part of which shall be suspended, or the person shall be
required to perform no less than forty-eight hours but no more than seventy-two
hours of community service during hours when the person is not employed or
attending school.
(e) The department shall not adopt rules
prohibiting delivery sales.
(f) For the purposes of this section:
"Delivery
sale" means any sale of an electronic smoking device to a purchaser in the
State where either:
(1) The purchaser submits the order for
sale by means of a telephonic or other method of voice transmission, the mail
or any other delivery service, or the internet or other online service; or
(2) The electronic smoking device is
delivered by use of the mail or any other delivery service.
The
foregoing sales of electronic smoking devices shall constitute a delivery sale
regardless of whether the seller is located within or without the State.
"Electronic
smoking device" means any electronic product that can be used to
aerosolize and deliver nicotine or other substances to the person inhaling from
the device, including but not limited to an electronic cigarette, electronic
cigar, electronic cigarillo, or electronic pipe, and any cartridge or other
component of the device or related product."]
SECTION 8. 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 9. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 10. 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 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 12. This Act, upon its approval, shall take effect on July 1, 2023; provided that section 4 shall take effect on July 1, 2024, and section 5 shall take effect on December 1, 2024.
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INTRODUCED BY: |
_____________________________ |
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BY REQUEST |
Report Title:
Unlawful Shipment of Tobacco Products; Electronic Smoking Devices; E-liquid; Tobacco Products; License Fee; Retail Permit Fee
Description:
Establishes the criminal offense of unlawful shipment of tobacco products. Includes electronic smoking devices and e-liquids within the definition of "tobacco products", as used in the Cigarette Tax and Tobacco Tax Law. Increases the license fee for persons engaged as wholesalers or dealers of cigarettes and tobacco products. Increases the retail tobacco permit fee for retailers engaged in the retail sale of cigarettes and tobacco products. Repeals certain provisions of the Hawaii Revised Statutes relating to electronic smoking devices and the sale of tobacco products. Effective July 1, 2023; provided that section 4 shall take effect on July 1, 2024, and section 5 shall take effect on December 1, 2024.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
