HB2457 SD2

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 healthcare 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 cigarettes 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 cigarette 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.

It is no coincidence that the number of electronic cigarette flavors has skyrocketed in recent years, with more than fifteen thousand unique electronic cigarette flavors identified in a 2018 study. Hawaii has experienced the heightened promotion of electronic cigarette 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.

Given the significant threat to public health posed by flavored tobacco products, twenty-six local jurisdictions in four states–-California, Colorado, Massachusetts, and Minnesota--have enacted legislation to prohibit the sale of flavored tobacco products. 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 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; 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, seized, summarily forfeited to the State, and destroyed following the conclusion of an administrative or judicial proceeding finding that a violation of this section has been committed. The procedures set forth in chapter 712A shall not apply to this subsection.

(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 and penalties collected under this section shall be 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.

"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. The term "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).

"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.

"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 or menthol, that is distinguishable by a consumer either prior to or during the consumption of a tobacco product, including but not limited to a product that contains a taste or smell relating to fruit, mint, wintergreen, chocolate, cocoa, vanilla, honey, 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. 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. Section 328L-5, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) There is established the Hawaii tobacco prevention and control trust fund as a separate fund of a nonprofit entity having a board of directors and qualifying under section 501(c)(3) of the Internal Revenue Code of 1986, as amended, into which shall be deposited moneys received as provided under section 328L-2(b)(2)[.] and section 712- . The director of health with the concurrence of the governor, shall select, in accordance with law, the entity based upon the proven record of accomplishment of the entity in administering a similar trust fund."

2. By amending subsection (e) to read:

"(e) The assets of the Hawaii tobacco prevention and control trust fund shall consist of:

(1) Moneys appropriated under section 328L‑2(b)(2);

(2) Moneys appropriated to the Hawaii tobacco prevention and control trust fund by the state, county, or federal government;

(3) Private contributions of cash or property; [~~and~~]

(4) Income and capital gains earned by the trust fund[.]; and

(5) Moneys deposited into the Hawaii tobacco prevention and control trust fund pursuant to section 712- ."

SECTION 4. 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) [~~shall be~~]:

(a) For the first offense, shall:

(i) Be fined $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

(b) For any subsequent offense, shall [~~subject~~]:

(i) Subject the violator to a fine of $50, no part of which shall be suspended[,]; or [~~the person shall be required to perform~~]

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

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect on September 1, 2020.

HOUSE OF REPRESENTATIVES	H.B. NO.	2457
THIRTIETH LEGISLATURE, 2020		H.D. 2
STATE OF HAWAII		S.D. 2