HOUSE OF REPRESENTATIVES
THIRTIETH LEGISLATURE, 2020
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO THE YOUTH VAPING EPIDEMIC.
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 that results in loss of life and 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 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 by Hawaii's youth. 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 2017, twenty-seven per cent of middle school students and forty-two per cent of public high school students tried electronic smoking devices. Today, sixteen per cent of middle school students and more than a quarter of high school students use electronic smoking devices. Current use of electronic smoking devices by county is even more problematic, with figures exceeding thirty per cent on the islands of Hawaii, Maui, and Kauai. 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 that has been achieved.
The popularity of electronic smoking devices among youth is especially concerning because these products contain nicotine. 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."
Use of an electronic smoking device also puts the user at risk for lung injury and even death. Following more than one thousand reported cases of lung injury and eighteen confirmed deaths associated with the use of electronic smoking devices or "vaping" products nationwide, in 2019, the department of health issued a health advisory urging everyone to stop vaping.
The legislature further finds that a significant driver to increased youth use of electronic smoking devices is the availability of flavored tobacco products. While a 2009 federal law, the Family Smoking Prevention and Tobacco Control Act, prohibited characterizing flavors, including fruit and candy flavorings, in cigarettes, it did not ban the use of characterizing flavors in other tobacco products, such as electronic smoking devices. The tobacco industry and electronic smoking device industry have in recent years significantly increased the introduction and marketing of flavored non-cigarette tobacco products for electronic smoking devices.
Adding flavoring to tobacco changes the taste and reduces the harshness of the otherwise unflavored tobacco product, making smoking more appealing and easier for beginners to try‒ and ultimately become addicted. According to a recent survey, eighty-one per cent of youth who have ever used a tobacco product reported that the first tobacco product they used was flavored.
The legislature also finds that it is no coincidence that the number of electronic smoking device flavors has skyrocketed in recent years, with more than fifteen thousand unique electronic smoking device flavors identified in a 2018 study. Hawaii has experienced the heightened promotion of electronic smoking device 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 are disproportionately using flavored tobacco products, including menthol. In Hawaii, seventy-eight per cent of Native Hawaiians and Pacific Islanders and forty-two per cent of Caucasian adult smokers consume menthol cigarettes. Menthol cigarette use is high among Filipinos as well. Current estimates predict that menthol cigarette smoking will contribute to more than three hundred thousand deaths by 2050.
Given the significant threat to public health posed by flavored tobacco products, including menthol, twenty-six local jurisdictions in four states–-California, Colorado, Massachusetts, and Minnesota--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 of all flavored tobacco products in the State. This Act shall be known and may be cited as the Reversing the Youth Tobacco Epidemic Act of 2020.
SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to subpart C of part II to be appropriately designated and to read as follows:
"§302A- Safe harbor for disposal of electronic smoking device. (a) The department shall establish and administer a safe harbor program by which persons under the age of twenty-one may dispose of electronic smoking devices in their possession.
(b) Notwithstanding any law to the contrary, a person under the age of twenty-one who disposes of an electronic smoking device pursuant to a program established under to this section shall not be subject to any penalty relating to the underage possession of electronic smoking device arising out of possession of the disposed electronic smoking device."
SECTION 3. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to subpart C of part IV to be appropriately designated and to read as follows:
"§302A- Confiscation of electronic smoking devices. (a) A teacher or educator at a public school shall confiscate an electronic smoking device that is found in the possession of a student who is under the age of twenty-one.
(b) Each public school shall coordinate with the department of health for the proper disposal of electronic smoking devices confiscated pursuant to subsection (a).
(c) No teacher or educator, nor the public school that employs the teacher or educator, who acts or fails to act in accordance with this section shall be liable in any court of law for acting or failing to act in accordance with this section."
SECTION 4. 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 or advertising of tobacco products; remote retail sales; flavored; nicotine-free. (1) Beginning January 1, 2021, it shall be unlawful for any retailer or any agents or employees of the retailer to:
(a) Sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product;
(b) Mislabel as nicotine-free, or sell or market for sale as nicotine-free, any e-liquid product that contains nicotine; or
(c) Market, advertise, or promote any electronic smoking device in a manner that is designed to appeal to an individual under twenty-one years of age.
(2) A statement or claim directed to consumers or the public that the tobacco product is flavored, including 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 retailer or manufacturer or an agent or employee of the retailer or 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, subject to immediate forfeiture and destruction and shall not be subject to the procedures set forth in chapter 712A.
(4) For the first offense, any retailer that violates this section may be fined not more than $500 and any agent or employee of the retailer who knowingly violates this section may be fined not more than $500. Any subsequent offenses shall subject the offender to a fine of not less than $500 nor more than $2,000. Each flavored tobacco product in the retailer's possession shall be considered a separate violation of this section. All fines shall be paid to the department of health and deposited into the Hawaii tobacco prevention and control trust fund established pursuant to section 328L-5.
(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:
"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).
"E-liquid" means any liquid or like substance, including heated tobacco products, 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; medical cannabis or manufactured cannabis products; or medical devices used to inhale or ingest prescription drugs, including devices sold at a licensed medical cannabis dispensary.
"Entity" means one or more individuals, a company, corporation, a partnership, an association, or any other type of legal entity.
"Flavored tobacco product" means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by a consumer either prior to or during the consumption of a tobacco product, including but not limited to any mentholated tobacco product or a product that contains a taste or smell relating to fruit, mint, menthol, wintergreen, chocolate, cocoa, vanilla, honey, or any candy, dessert, alcoholic beverage, herb, or spice.
"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 that sells, offers for sale, or exchanges or offers to exchange for any form of consideration tobacco products or e-liquids to consumers. "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 5. Section 712-1258, Hawaii Revised Statutes, is amended by amending subsection (6) to read as follows:
"(6) Any person who violates subsection (1) or (4), or both,
shall be fined $500 for the first offense.
Any subsequent offenses shall subject the person to a fine not less than
$500 nor more than $2,000. Any person
under twenty-one years of age who violates subsection (5) [
(a) For the first offense, shall:
$10 for the first offense. Any]
(ii) Complete a tobacco education program or a tobacco use cessation program approved by the director of health; or
(iii) Perform three hours of community service during hours when the person is not employed and is not attending school; and
any subsequent offense, shall [
subject the violator to a
fine of $50,]:
fined $300, no part of which shall be suspended[
, or the person shall be
required to perform]; or
(ii) Perform not less than forty-eight hours nor more than seventy-two hours of community service during hours when the person is not employed and is not attending school.
Any tobacco product or electronic smoking device, as those terms are defined in subsection (7), in the person's possession at the time of violation of subsection (5) shall be 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 subsection (5) has been committed. The procedures set forth in chapter 712A shall not apply to this subsection."
SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 8. This Act shall take effect on July 1, 2050.
Flavored Tobacco Products; Electronic Smoking Devices; Sale; Ban; DOE; DOH
Beginning 1/1/2021: bans the sale of flavored tobacco products; prohibits mislabeling of e-liquid products containing nicotine; and establishes fines and penalties for violations. Requires the Department of Education to establish a safe harbor program by which persons under 21 years of age may dispose of electronic smoking devices in their possession. Requires public school teachers and educators to confiscate electronic smoking devices. Increases fines for the purchase or possession of tobacco products and electronic smoking devices by persons under 21 years of age. Authorizes a court to impose, as a penalty on a person 18-21 years of age who is convicted of possession of a tobacco product or electronic smoking device, the requirement to complete a tobacco education program, complete a tobacco use cessation program, or perform community service instead of paying a fine. Effective 7/1/2050. (HD1)
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.