Bill Text: HI SB3118 | 2022 | Regular Session | Amended

Hawaii Senate Bill 3118 (Prior Session Legislation)

Bill Title: Relating To Tobacco Products.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed - Dead) 2022-03-10 - Referred to HHH, CPC, referral sheet 24 [SB3118 Detail]

Download: Hawaii-2022-SB3118-Amended.html

THE SENATE	S.B. NO.	3118
THIRTY-FIRST LEGISLATURE, 2022		S.D. 2
STATE OF HAWAII

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 in Hawaii. Tobacco use is a serious public health problem in terms of the human suffering and loss of life it causes, as well as the financial burden it imposes on society and our health care system. According to the Centers for Disease Control and Prevention's 2014 "Best Practices for Comprehensive Tobacco Control Programs" guide, $526,000,000 in health care costs are directly attributable to smoking in the State of Hawaii.

Furthermore, in a 2016 report titled "E-Cigarette Use Among Youth and Young Adults," the United States Surgeon General explained that ninety-five per cent of all smokers start smoking before the age of twenty-one. A 2017 study published in the American Journal of Preventive Medicine found that eighty-one per cent of youth who had previously used a tobacco product reported that the first product they used was flavored. Flavored tobacco products promote youth initiation to tobacco use and push young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke, thereby increasing the appeal of tobacco products.

Menthol is used by the tobacco industry because it has a cooling and numbing effect and can reduce the throat irritation caused by smoking, thus making menthol cigarettes an appealing option for youth who are initiating tobacco use. Candy and fruit flavors also improve the taste and reduce the harshness of tobacco products, making them more appealing and easier for beginners to try tobacco products and ultimately become addicted.

The legislature further finds that the popularity of electronic cigarettes among youth is concerning. The combination of enticing flavors and nicotine salts allows higher levels of nicotine to be inhaled with less irritation because they have a lower potential of hydrogen, also known as "pH". In the 2016 report titled "E-Cigarette Use Among Youth and Young Adults," the United States Surgeon General stated that, "Compared with older adults, the brain of the youth and young adults is more vulnerable to the negative consequences of nicotine exposure. The effects include addiction, priming for use of other addictive substances, reduced impulse control, deficits in attention and cognition, and mood disorders."

While there has been a significant decline in the use of combustible cigarettes over the last decade, there has been a dramatic increase in the use of electronic smoking devices by Hawaii's youth. Vaping in Hawaii is at an epidemic level. According to the 2011 and 2015 Hawaii Youth Tobacco Survey, during these four years, the proportion of youth experimenting with electronic smoking devices increased six-fold among middle school youth and four-fold among high school youth. According to the 2019 Hawaii Youth Risk Behavior Survey, thirty-one per cent of middle school students and forty-eight per cent of public high school students had tried electronic smoking devices. The 2019 Hawaii Youth Risk Behavior Survey also indicates that eighteen per cent of middle school students and thirty-one per cent of high school students currently vape. The 2019 Hawaii Youth Risk Behavior Survey also shows the rates are higher in the neighbor island counties with high school vaping use rates exceeding thirty-five per cent for Hawaii, Maui, and Kauai. These rates rank among the highest in the country.

Furthermore, while the 2009 Family Smoking Prevention and Tobacco Control Act, P.L. 111-31, prohibited characterizing flavors in cigarettes (including fruit and candy flavorings), it did not ban menthol in cigarettes or the use of characterizing flavors in other tobacco products. The Tobacco Control Act provided the United States Food and Drug Administration with the authority to regulate cigarettes, roll-your-own tobacco, and smokeless tobacco, but required the Food and Drug Administration to undertake an extensive rulemaking process to extend its regulatory authority to include e-cigarettes. Delays in the regulatory process allowed the tobacco industry and electronic smoking device industry to significantly increase the introduction of and extensively market flavored non-cigarette tobacco products, especially in electronic smoking devices.

It is no coincidence that the number of electronic cigarette flavors have skyrocketed in recent years. In a 2018 study published in The Journal of Medical Internet Research, the count of flavor labels was reported to have more than doubled from 7,776 in 2013-2014 to 15,586 in 2016-2017. Hawaii has experienced the heightened promotion of vape products that offer candy and local flavors designed to appeal to the State's youth, such as orange soda, apple mui, Kona coffee, Maui mango, shaka strawberry, lychee ice, and Molokai hot bread. Additionally, many of the packages are designed to look like candies popular with children, such as Jolly Ranchers and Sour Patch Kids.

The legislature additionally finds that young people are disproportionately using flavored tobacco products, including menthol. According to a 2010 Hawaii State Department of Health report titled "Smoking and Tobacco Use in Hawaii: Facts, Figures and Trends," seventy-eight per cent of native Hawaiian and Pacific Islander adult smokers and forty-two per cent of Caucasian adult smokers consume menthol cigarettes. A 2019 study published in the Hawai'i Journal of Health and Social Welfare found that sixty-seven per cent of Filipino adult smokers preferred the menthol flavor. In a 2011 modeling study published in the American Journal of Public Health, an estimated 633,252 deaths, nationally, can be averted by the year 2050 if menthol cigarette smoking is banned.

Given the significant threat to public health posed by flavored tobacco products, including those with menthol, five states (including California, Massachusetts, New Jersey, New York, and Rhode Island) and dozens of cities have enacted laws prohibiting the sale of flavored tobacco products. These laws now protect over twenty-five per cent of the United States population. The legislature therefore finds that Hawaii should also take steps to regulate these 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, and prohibit the mislabeling of products as nicotine-free.

SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to part IV to be appropriately designated and to read as follows:

"§712- Sale of flavored tobacco products; mislabeling as nicotine-free. (1) Beginning January 1, 2023, it shall be unlawful for any retailer, or any agent or employee of the retailer, to:

(a) Sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product; or

(b) Mislabel as nicotine-free, or sell or market for sale as nicotine-free, any e-liquid product that contains nicotine.

(2) A statement or claim, 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 flavor other than tobacco, made by a manufacturer or an agent or employee of the manufacturer in the course of the person's agency or employment, and directed to consumers or the public, shall be prima facie evidence that the tobacco product is a flavored tobacco product.

(3) 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.

(4) Any flavored tobacco product found in a retailer's possession that is in violation of this section shall be considered contraband, promptly seized, subject to immediate forfeiture and destruction or disposal, and shall not be subject to the procedures set forth in chapter 712A; provided that the cost of proper disposal of electronic smoking devices and e‑liquids as hazardous waste under section 11-266.1, Hawaii Administrative Rules, shall be borne by the retailer.

(5) Any retailer and any agent or employee of a retailer who violates this section shall be subject to a fine not to exceed $500. Any subsequent violation shall subject the offender to a fine of not less than $500 nor more than $2,000.

(6) 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 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.

(7) For the purposes of this section:

"Characterizing flavor" means a distinguishable 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. 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.

"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" means any electronic product that can be used to aerosolize and deliver nicotine or other substances to a 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.

"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" shall not include prescription drugs; medical cannabis or manufactured cannabis products pursuant to chapter 329D; or medical devices used to aerosolize, inhale, or ingest prescription drugs, or manufactured cannabis products manufactured or distributed in accordance with section 329D-10(a).

"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. The term "retailer" includes the owner of a tobacco retail location.

"Tobacco product" means any product containing, made of, or derived from tobacco or nicotine 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 or smokeless tobacco, snuff, snus, e-liquid, 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.

"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. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. 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 5. New statutory material is underscored.

SECTION 6. This Act shall take effect on January 1, 2050.

Report Title:

Flavored Tobacco Products; Sale; Ban

Description:

Bans the sale of flavored tobacco products and mislabeled e‑liquid products. Establishes fines. Effective 1/1/2050. (SD2)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.