Flavored Tobacco; Health
Prohibits the sale and distribution of flavored tobacco products. Prohibits sale of cigarettes from self-service displays. Defines "self-service displays". Clarifies definition of "cigarette vending machine". Changes amount of fine from $1,000 per day to unspecified amounts for first and subsequent offenses. Prohibits smoking statewide on public beaches and in public parks. (HB527 HD1)
HOUSE OF REPRESENTATIVES
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII
A BILL FOR AN ACT
relating to tobacco.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that there has been a proliferation of flavored tobacco products in recent years. Many of these products contain fruit, chocolate, honey, candy, mint, cocoa, dessert, herb, spice, or other flavors that are particularly attractive to children. According to public health experts, children are more likely to choose flavored tobacco when they start smoking or use other tobacco products, in part, because the product names for flavored tobacco products are similar to product names for candy, drinks, and other products marketed directly to children.
In October 2006, R.J. Reynolds Tobacco Company and the attorneys general of thirty-eight states, including Hawaii, entered into a settlement agreement that ends the sale of candy, fruit, and alcohol-flavored cigarettes manufactured and sold by the company. The states had asserted that Reynolds was violating the 1998 tobacco Master Settlement Agreement that prohibits targeting youth through its advertising, marketing and promotion of its flavored cigarettes. No agreement has been reached with other tobacco manufacturers.
The legislature also finds that these products are being manufactured by other tobacco companies, which increases the incidence of tobacco use among children and that the earlier an individual begins using tobacco products, the more likely the individual will become addicted to and use them throughout the person's lifetime. Thus, flavored tobacco products result in greater tobacco use, increased addiction, greater incidence of smoking, other tobacco-related illnesses and deaths, and higher health care costs.
The purpose of this Act is to protect public health by prohibiting the sale and distribution of flavored tobacco products.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
FLAVORED TOBACCO PRODUCTS
§ -1 Definitions. As used in this chapter, unless the context otherwise requires:
"Characterizing flavor" means a distinguishable taste or aroma, other than tobacco, menthol, or clove, imparted either prior to or during consumption.
"Chewing tobacco" means loose tobacco or a flat compressed cake of tobacco, a portion of which is inserted into the mouth.
"Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary condition of use, and consists of or contains:
(1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco;
(2) Tobacco in any form that is functional in the product which, because of its appearance, the type of tobacco used in the filler or its packaging and labeling is likely to be offered to or purchased by consumers as a cigarette; or
(3) Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to or purchased by consumers as a cigarette described in paragraph (1) of this definition.
The term "cigarette" includes "roll-your-own" which enables consumers to make their own product.
"Component parts" includes but is not limited to the tobacco, filter, and paper in a cigarette.
"Constituent" includes a smoke constituent.
"Smokeless tobacco" means chewing tobacco or tobacco snuff.
"Tobacco snuff" means a small amount of shredded, powdered, or pulverized tobacco that may be inhaled through the nostrils, chewed, or held in the mouth of an individual user.
§ -2 Prohibition. No person shall sell, offer for sale, or distribute in this state or to any person in this state any cigarette, smokeless tobacco product, or any component part thereof containing a natural or artificial constituent or additive that causes the cigarette or smokeless tobacco product to have a characterizing flavor.
§ -3 Remedies. The attorney general may institute a civil action in the name of the State in the circuit court for an injunction prohibiting a violation of this chapter. If the court grants an injunction in accordance with this section, the State shall not be required to furnish a bond. The court, upon notice to the defendant in compliance with the Hawaii rules of civil procedure and upon proof that the defendant has violated this chapter, may enjoin further sale, offering for sale, or distribution by the defendant. The court may impose a civil penalty in an amount not to exceed $5,000 for each violation. The attorney general may recover costs and disbursements, including costs of investigation and reasonable attorney's fees. Nothing in this section shall preclude the State or any other person from pursuing any other claims, remedies, or actions available by law."
SECTION 3. The department of the attorney general shall provide annual reports until 2010 to the legislature not less than twenty days prior to the beginning of the regular session of the legislature, beginning with the regular session of 2009. The report shall include data on:
(1) Annual sales of flavored tobacco products sold in the state;
(2) Revenues generated by the sale of flavored tobacco products; and
(3) Under-age people using flavored tobacco products.
SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 5. Section 328J-16, Hawaii Revised Statutes, is amended to read as follows:
Cigarette sales from vending machines, self-service displays, and by
lunch wagons prohibited. (a) The sale or distribution [ at no charge]
of cigarettes by the following methods is prohibited:
(1) From cigarette vending machines, unless the
vending machine is located in a bar, cabaret, or any establishment for which
the minimum age for admission is eighteen; [
(2) From a lunch wagon engaging in any sales activity
within one thousand feet of any public or private elementary or secondary
(3) From a self-service display, except a cigarette vending machine as provided in this subsection.
(b) Violations of subsection (a), including
placement of a cigarette vending machine in a location other than a bar,
cabaret, or any establishment for which the minimum age for admission is
eighteen, are subject to a fine of up to [
$1,000 per day for each violation.]
$ for the first offense. Any subsequent
offenses at the same location within
shall subject the person to a
fine of not less than $ or more than
(c) As used in this section:
"Cigarette vending machine" means a
self-service device that dispenses cigarettes, cigars, tobacco, or any other
product containing tobacco[
.], except a vending machine that
dispenses cigarettes, cigars, tobacco, or any other product containing tobacco
through the operation of a device that requires a salesperson to control the
dispensation of the product.
"Lunch wagon" means a mobile vehicle designed and constructed to transport food and from which food is sold to the general public and includes but is not limited to manapua trucks.
"Self-service display" means a display that contains cigarettes and is located in an area openly accessible to customers and from which customers can readily access cigarettes without the assistance of a salesperson. A display case that holds cigarettes from behind locked doors shall not constitute a self-service display for purposes of this section.
"Sell" or "sale" means to solicit and receive an order for; to have, keep, offer, or expose for sale; to deliver for value or in any other manner than purely gratuitously; to peddle; to keep with intent to sell; or to traffic in."
SECTION 5. Section 328J-2, Hawaii Revised Statutes, is amended to read as follows:
Prohibition on property and in facilities owned by the State or the
counties. Smoking shall be prohibited on all public beaches, in all
public parks, and in all enclosed or partially enclosed areas, including buildings
and vehicles owned, leased, or operated by the State or any county."
SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 7. This Act shall take effect on January 1, 2010.