THE SENATE

S.B. NO.

1146

THIRTY-FIRST LEGISLATURE, 2021

 

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. 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 healthcare system. Annually, $526,000,000 in health care costs are directly attributed to smoking in the State.

Furthermore, ninety-five per cent of all smokers start before the age of twenty-one. Eighty-one per cent of youth who have ever used a tobacco product report that the first tobacco product they used was flavored. Flavored tobacco products promote youth initiation of tobacco use and help young occasional smokers become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke, thereby increasing the appeal of tobacco products.

Menthol, in particular, is used by the tobacco industry because it has a cooling and numbing effect and can reduce the throat irritation from smoking, thus making menthol cigarettes an appealing option for youth who are initiating tobacco use. Candy and fruit flavors 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 popularity of electronic cigarettes among youth is concerning, as these products contain nicotine salts. The United States Surgeon General noted in the 2016 report titled "E-Cigarette Use Among Youth and Youth 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."

Furthermore, 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. 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 2019, thirty-one per cent of middle school and forty-eight per cent of public high school students tried electronic smoking devices. Today, eighteen per cent of middle school and more than almost a third of high school students vape. 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 rank among the highest in the country and demonstrate a disturbing trend of youth nicotine use and threaten the historic decline achieved in combustible cigarette use.

Furthermore, a 2009 federal law, the Family Smoking Prevention and Tobacco Control Act, prohibited characterizing flavors, including fruit and candy flavorings, in cigarettes but did not ban menthol in cigarettes or the use of characterizing flavors in other tobacco products. Only cigarettes, roll-your-own tobacco, and smokeless tobacco are subject to regulation under this Act. The tobacco industry and electronic smoking device industry have since significantly increased the introduction and marketing of flavored non-cigarette tobacco products, especially electronic smoking devices. It is no coincidence that the number of electronic cigarette flavors have skyrocketed in recent years, with more than fifteen thousand five hundred unique e‑cigarette flavors identified in a 2018 study. 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 candy, fruit, chocolate, mint, menthol, Kona coffee, Maui Mango, Shaka strawberry, and Moloka'i hot bread. Additionally, many of the packages are designed to look like candies popular with children, such as Jolly Ranchers and Sour Patch Kids.

Additionally, young people are disproportionately using flavored tobacco products, including menthol. According to the 2010 study, "Smoking and Tobacco Use in Hawaii," 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 2018 study also indicated that sixty-seven percent of Filipino adult smokers preferred the menthol flavor. Conservative estimates noted in a 2011 paper suggest that over three hundred thousand deaths nationally can be averted by the year 2050, if menthol cigarette smoking is eliminated.

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 policies ending the sale of flavored tobacco products. These laws now protect over 25% of the U.S. population. Therefore 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.

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

"712- Sale of flavored tobacco products; mislabeling as nicotine-free. (1) Beginning January 1, 2022, 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; 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 directed to consumers or the public that the tobacco product has or produces a characterizing flavor, 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 characterizing flavor made by a manufacturer or an agent or employee of the 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, summarily forfeited to the State, and destroyed by law enforcement following the conclusion of an administrative or judicial proceeding finding that a violation of this section has been committed and shall not be subject to the procedures set forth in chapter 712A.

(4) Any retailer and any agents or employees of a retailer who violate this section shall be subject to a fine not exceeding $500. Any subsequent violation shall subject the offender to a fine of not less than $500 nor more than $2,000.

(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 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:

"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. 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.

"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 e-liquid, 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, including 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 made or derived from tobacco that contains nicotine or other substances and 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 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, upon its approval, shall take effect on January 1, 2022.

 

INTRODUCED BY:

_____________________________

 

 

BY REQUEST


 


 

Report Title:

Flavored Tobacco Products; Sale; Ban

 

Description:

Bans the sale of flavored tobacco products and mislabeled e-liquid products. Effective 1/1/2022.

 

 

 

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