THE SENATE

S.B. NO.

642

TWENTY-SEVENTH LEGISLATURE, 2013

H.D. 2

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO HEALTH.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


PART I

     SECTION 1.  The legislature finds that the tobacco industry spends more than $12,000,000,000 annually on advertising and marketing its products in the United States.  Each year, tobacco companies spend over $42,000,000 promoting their brands in stores throughout Hawaii.  The National Cancer Institute has reported that the total weight of evidence from multiple studies demonstrates a causal relationship between tobacco advertising and promotion and increased tobacco use.

     The legislature additionally finds that retail stores are given incentives to place tobacco advertisements and products in strategic locations near the cash register, known as a point-of-sale, or in self-service displays.  Research indicates the presence of these products and advertisements may stimulate impulse purchases.  Furthermore, a 2009 study found that frequent visits to stores selling tobacco and a greater awareness of cigarettes sold in stores increased the likelihood of teenagers being susceptible to initiating smoking, experimenting with smoking, or becoming smokers.

     The legislature has a compelling interest in reducing the number of children and teens in Hawaii who smoke.  The legislature finds that because of the documented connection between children and youth exposure to tobacco advertisements and youth tobacco initiation, regulations on the placement of cigarette and tobacco products is needed.

     The purpose of this part is to require cigarettes and tobacco products to be sold, offered for sale, or displayed for sale behind the check-out counter so that sales occur only in a direct, face-to-face exchange between the retailer and the consumer where the consumer specifically requests the cigarettes or tobacco products.

     SECTION 2.  Chapter 328J, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§328J-    Placement of cigarettes and tobacco products.  (a)  A person who owns, manages, operates, or otherwise controls any establishment where cigarettes or tobacco products are sold or offered for sale shall not sell, permit to be sold, or offer for sale any cigarettes or tobacco products except in a direct, face-to-face exchange between the retailer and the consumer where the consumer specifically requests the cigarettes or tobacco products and shall display cigarettes or tobacco products only behind the checkout counter.

     (b)  This section shall not apply to in-bond concession or to retail tobacco stores, bars, or any establishment for which the minimum age for admission is eighteen."

PART II

     SECTION 3.  The legislature finds that the State's medical marijuana program was enacted into law in 2000 as a public health program conceived out of compassion for the health and welfare of the seriously ill.  After twelve years, the experience of the program indicates that improvements to the law will help to fulfill its original intent by clarifying provisions and removing serious obstacles to patient access and physician participation.

     The purpose of this part is to amend the medical use of marijuana law to address the concerns of Hawaii's seriously ill patients.

     SECTION 4.  Chapter 329, Hawaii Revised Statutes, is amended by adding two new sections to part IX to be appropriately designated and to read as follows:

     "§329-    Transfers.  (a)  A qualifying patient who has a primary caregiver who is registered under section 329-123 may provide usable marijuana or any part of the marijuana plant, including seeds, seedlings, or clones, to a second qualifying patient for whom the primary caregiver is also responsible; provided that no consideration is paid for the marijuana and that the total amount of marijuana possessed by the recipient does not exceed the adequate supply amount specified in section 329-121.

     (b)  A primary caregiver who is registered under section 329-123 may provide usable marijuana or any part of the marijuana plant, including seeds, seedlings, or clones, to no more than two qualifying patients who are registered to the primary caregiver under section 329-123; provided that no consideration is paid for the marijuana and that the total amount of marijuana possessed by the recipient does not exceed the adequate supply amount specified in section 329-121.

     §329-    Limitation of marijuana plants grown.  Notwithstanding the adequate supply amount authorized for each qualifying patient and primary caregiver pursuant to this chapter, there shall be no more than twenty-one marijuana plants located at a single property as defined by a single Tax Map Key."

     SECTION 5.  Section 329-121, Hawaii Revised Statutes, is amended as follows:

     1.   By adding a new definition to be appropriately inserted and to read:

     ""Reimbursement" means consideration provided to a primary caregiver as compensation for costs associated with assisting qualifying patients who are registered under section 329-123 to obtain marijuana for medical use; provided that "reimbursement" shall not include the sale of controlled substances."

     2.   By amending the definition of "adequate supply" to read:

     ""Adequate supply" means an amount of marijuana jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed [three mature] seven marijuana plants[, four immature marijuana plants, and one ounce], whether immature or mature, and five ounces of usable marijuana [per each mature plant.] at any given time."

     3.   By amending the definition of "medical use" to read:

     ""Medical use" means the acquisition, possession, cultivation, use, distribution, or transportation of marijuana or paraphernalia relating to the administration of marijuana to alleviate the symptoms or effects of a qualifying patient's debilitating medical condition.  For the purposes of "medical use", the term distribution is limited to the transfer of marijuana and paraphernalia [from the primary caregiver to the qualifying patient.] among qualifying patients and primary caregivers."

     4.   By amending the definition of "primary caregiver" to read:

     ""Primary caregiver" means a person[,] eighteen years of age or older, other than the qualifying patient and the qualifying patient's physician, [who is eighteen years of age or older] who has agreed, with or without reimbursement, to undertake responsibility for managing the well-being of the qualifying patient with respect to the medical use of marijuana.  In the case of a minor or an adult lacking legal capacity, the primary caregiver shall be a parent, guardian, or person having legal custody."

     5.   By amending the definition of "usable marijuana" to read:

     ""Usable marijuana" means the dried leaves and flowers of the plant Cannabis family Moraceae, and any mixture [[]or[]] preparation thereof, that are appropriate for the medical use of marijuana.  "Usable marijuana" does not include the seeds, stalks, and roots of the plant."

     6.   By amending the definition of "written certification" to read:

     ""Written certification" means the qualifying patient's medical records or a statement signed by a qualifying patient's physician, stating that in the physician's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient.  The department of [public safety] health may require, through its rulemaking authority, that all written certifications comply with a designated form.  "Written certifications" are valid for only one year from the time of signing."

     SECTION 6.  Section 329-122, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Notwithstanding any law to the contrary, the medical use of marijuana by a qualifying patient shall be permitted only if:

     (1)  The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

     (2)  The qualifying patient's physician has certified in writing that, in the physician's professional opinion, the potential benefits of the medical use of marijuana  would likely outweigh the health risks for the particular qualifying patient; and

     (3)  The amount of marijuana possessed by the qualifying patient does not exceed an adequate supply."

     SECTION 7.  Section 329-123, Hawaii Revised Statutes, is amended to read as follows:

     "§329-123  Registration requirements.  (a)  Physicians who issue written certifications shall [register the names, addresses, patient identification numbers,] provide, in each written certification, the name, address, patient identification number, and other identifying information of the [patients issued written certifications with the department of public safety.] qualifying patient.  The department of health may require, in rules adopted pursuant to chapter 91, that all written certifications comply with a designated form completed by or on behalf of a qualifying patient.  The form shall only require information from the applicant, primary caregiver, and certifying physician as specifically required or permitted by this chapter.  The form may request the address of the location where the marijuana is grown, but that information shall be confidential and shall not appear on the registry card issued by the department of health.  The information required shall include the physician's attestation that the qualifying patient has one of the debilitating medical conditions defined in section 329-121 but shall not name or describe the particular condition.  The certifying physician shall not be required to be the qualifying patient's primary care physician.  If the physician issuing the written certification is not the qualifying patient's primary care physician, the issuing physician shall send a copy of the written certification to the qualifying patient's primary care physician, if any.

     (b)  Qualifying patients shall register with the department of [public safety.] health.  The registration shall be effective until the expiration of the certificate issued by the department of health and signed by the physician.  Every qualifying patient shall provide sufficient identifying information to establish the personal identities of the qualifying patient and the primary caregiver.  Qualifying patients shall report changes in information within [five] ten working days.  Every qualifying patient shall have only one primary caregiver at any given time.  The department of health shall [then] issue to the qualifying patient a registration certificate[,] and may charge a reasonable fee not to exceed $35[.] per year.

     (c)  Primary caregivers shall register with the department of [public safety.] health.  Every primary caregiver shall be responsible for the care of [only one] not more than two qualifying [patient] patients at any given time[.]; provided that a primary caregiver shall disclose the number of qualifying patients for whom the primary caregiver is responsible upon registration and that number shall be included in a registration certificate provided to the primary caregiver.  The primary caregiver shall notify the department of health in writing of any changes to the number of the qualifying patients for whom the primary caregiver is responsible.  The department of health shall then issue to the primary caregiver a registration certificate that includes the name of the qualifying patients for whom the primary caregiver is responsible, and may charge a reasonable fee not to exceed $35. 

     (d)  Upon [an] inquiry by a law enforcement agency, the department of [public safety] health shall verify whether the [particular qualifying patient] subject of the inquiry has registered with the department of health and may provide reasonable access to the registry information for official law enforcement purposes."

PART III

     SECTION 8.  The legislature finds that one of the top recommendations of the "Medical Cannabis Working Group Report to the Hawaii State Legislature" in 2010 was the transfer of the administration of Hawaii's medical use of marijuana program from the department of public safety to the department of health.  The status of the medical use of marijuana program as a public health program is more in line with the mission and expertise of the department of health.  The department of health is experienced in working with patients and health programs, including important tasks such as public outreach and education, and safeguarding patient privacy.

     The purpose of this part is to transfer the State's medical use of marijuana program from the department of public safety to the department of health.

     SECTION 9.  Chapter 321, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§321-     Medical marijuana registry revolving fund; established.  (a)  There is established within the state treasury the medical marijuana registry revolving fund.  The fund shall be expended at the discretion of the director of health:

     (1)  To offset the cost of the processing and issuance of a patient registry identification certificate;

     (2)  To fund positions authorized by the legislature;

     (3)  To establish and manage a secure and confidential database; and

     (4)  For any other expenditure necessary, as authorized by the legislature, to implement a medical marijuana registry program.

     (b)  The fund shall consist of all moneys derived from fees collected pursuant to subsection (c).  All fees collected pursuant to subsection (c) shall be deposited into the medical marijuana registry revolving fund. 

     (c)  The department may charge a medical marijuana registration fee of no more than $35."

     SECTION 10.  Section 329-59, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The fund shall consist of all moneys derived from fees collected pursuant to sections 329-31[,] and 329-67[, and 329-123(b)] and legislative appropriations.  All fees collected pursuant to sections 329-31[,] and 329-67[, and 329-123(b)] shall be deposited in the controlled substance registration revolving fund."

     SECTION 11.  (a)  No later than June 30, 2014, all rights, powers, functions, and duties of the department of public safety relating to the medical use of marijuana under part IX of chapter 329, Hawaii Revised Statutes, shall be transferred to the department of health.

     (b)  All employees who occupy civil service positions and whose functions are transferred to the department of health by this Act shall retain their civil service status, whether permanent or temporary.  Employees shall be transferred without loss of salary, seniority (except as prescribed by applicable collective bargaining agreement), retention points, prior service credit, any vacation and sick leave credits previously earned, and other rights, benefits, and privileges, in accordance with state personnel laws and this Act; provided that the employees possess the minimum qualifications and public employment requirements for the class or position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

     Any employee who, prior to this Act, is exempt from civil service and is transferred as a consequence of this Act, may continue to retain the employee's exempt status, but shall not be appointed to a civil service position as a consequence of this Act.  An exempt employee who is transferred by this Act shall not suffer any loss of prior service credit, vacation or sick leave credits previously earned, or other employee benefits or privileges as a consequence of this Act; provided that the employees possess legal and public employment requirements for the position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable employment and compensation laws.  The director of health may prescribe the duties and qualifications of such employees and fix their salaries without regard to chapter 76, Hawaii Revised Statutes. 

     SECTION 12.  The department of public safety shall facilitate the transfer of functions pursuant to this Act by collaborating with, cooperating with, and assisting the department of health with assuming jurisdiction of and responsibilities for the medical use of marijuana program.

     In order to facilitate the transfer of functions pursuant to this Act, until all relevant records are transferred to the department of health, the duties of the department of public safety shall include but not be limited to maintaining a confirmation service of the registration and certification of physicians, qualifying patients, and primary caregivers, pursuant to section 329-123, Hawaii Revised Statutes, which service shall operate twenty-four hours per day, seven days per week, and shall be accessible to the department of health.

     SECTION 13.  All appropriations, fees, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of public safety relating to the functions transferred to the department of health shall be transferred with the functions to which they relate.

     SECTION 14.  All rules, policies, procedures, guidelines, and other material adopted or developed by the department of public safety that are reenacted or made applicable to the department of health by this Act shall remain in full force and effect until amended or repealed by the department of health pursuant to chapter 91, Hawaii Revised Statutes.  In the interim, every reference to the department of public safety or director of public safety in those rules, policies, procedures, guidelines, and other material is amended to refer to the department of health or director of health.

     SECTION 15.  All designated forms for written certifications issued by the department of public safety shall be valid under the department of health until the department of health issues new designated forms.

     SECTION 16.  The department of public safety and the department of health shall develop a plan for transferring the medical use of marijuana program from the department of public safety to the department of health by June 30, 2014, pursuant to this Act.  The plan shall include a timeline for the transfer.

     SECTION 17.  The department of public safety and the department of health shall submit a joint report on the transfer of the medical use of marijuana program, including the plan and timeline for the transfer, and the progress made, to the legislature no later than twenty days prior to the convening of the regular session of 2014.

PART IV

     SECTION 18.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 19.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 20.  This Act shall take effect on July 1, 2112.



 

Report Title:

Tobacco; Tobacco Product Placement; Medical Use of Marijuana;  Medical Use of Marijuana Program

 

Description:

Requires cigarettes and tobacco products to be sold, offered for sale, or displayed behind the check-out counter only in a direct, face-to-face exchange between the retailer and the consumer.  Amends the Medical Use of Marijuana Law.  Transfers the Medical Use of Marijuana Program from the Department of Public Safety to the Department of Health by June 30, 2014.  Effective July 1, 2112.  (SB642 HD2)

 

 

 

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