SB1247

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 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 million in healthcare costs are directly attributed to smoking in our state.

The legislature also recognizes that 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 to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products. Candy and fruit flavors improve the taste and reduce the harshness of tobacco products, making them more alluring and easier for beginners to try the product and ultimately become addicted. The popularity of e-cigarettes among youth is concerning, as these products almost always contain nicotine. The US Surgeon General's 2016 Report on E-Cigarette Use Among Youth and Youth Adults reported, "Because 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."

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 e-cigarettes, also known as electronic smoking devices (ESDs) by Hawaii's youth. Vaping in Hawaii has reached epidemic levels. Between 2011 to 2015, the proportion of youth experimenting with ESDs increased six-fold among middle school youth and 4-fold among high school youth. In 2017, twenty-seven per cent of middle school and forty-two per cent of public high school students tried ESDs. Today, sixteen per cent of middle school and more than a quarter of high school students currently vape. Moreover, current use of ESDs by county is even more problematic with figures exceeding thirty per cent on Hawaii Island, Maui, and Kauai. These are higher than the national average and demonstrate a disturbing trend of youth nicotine use as well as threatening the historic decline achieved in combustible cigarette use.

The legislature further finds that the 2009 federal law, the Family Smoking Prevention and Tobacco Control Act, which prohibited the sale of cigarettes with characterizing flavors (other than menthol or tobacco) including candy and fruit, did not apply to other tobacco products. The tobacco industry and ESD industry have since significantly increased the introduction and marketing of flavored non-cigarette tobacco products, especially ESDs. It is no coincidence that the number of ESD flavors have skyrocketed in recent years, with more than 15,500 unique ESD flavors identified in a 2018 study by Zhu, S-H, et al. Our state has experienced the heightened promotion of vape products by offering candy and local flavors that appeal to Hawaii’s youth. ESD products are flavored to taste like candy, fruit, chocolate, and mint, Kona coffee, Maui Mango, Shaka strawberry, and Molokai hot bread. Finally, many of the packages are designed to look like popular children's candies like Jolly Ranchers and Sour Patch kids. The legislature additionally finds that young people are disproportionately using flavored tobacco products and it was the most important reason for trying ESDs according to several national studies. The National Youth Tobacco Survey found youth who use flavored ESDs are more likely to start using regular cigarettes, less likely to intend to quit using, and have a lower perception of the dangers of tobacco use.

Given the significant threat to public health posed by flavored tobacco products, a growing number of jurisdictions including San Francisco, Berkeley, Chicago, Minneapolis, and Providence have introduced and passed legislation to regulate the sale of flavored tobacco products.

This legislature concludes that Hawaii should also take steps to regulate such 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 any flavored tobacco products within the State of Hawaii.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to title 19 be appropriately designated and to read as follows:

"CHAPTER

PROHIBITION ON THE SALE OF FLAVORED TOBACCO PRODUCTS

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"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, desert, alcoholic beverage, 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. Rather, it is the presence 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, or part thereof, that can be used by a person to simulate smoking in the delivery of~~to aerosolize and deliver~~ nicotine or other substances, intended for human consumption through inhalation of vapor or aerosol ~~to the person inhaling~~ from the ~~device~~product. The term “electronic smoking device” includes, but is not limited to an electronic cigarette, electronic cigar, electronic cigarillo, or electronic pipe, electronic hookah, vape pen or related product, and any 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. The term "E-liquid" does not include prescription drugs; cannabis or manufactured cannabis products under 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).

"Enforcing agency" means the department of the attorney general, another state agency, including but not limited to, the department of health, county law enforcement agencies, prosecuting attorneys, or county counsels.

"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.

"Tobacco product" means any product that is made or derived from tobacco in any form, or that contains nicotine that is intended for human consumption, or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by other means. The term "tobacco product" includes, but is not limited to, pipe tobacco, chewing or smokeless tobacco, snuff, snus, cigarette, little cigar, electronic smoking device, e-liquid, or related product. "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, café, stand, outlet, vehicle, cart, location, vending machine, or structure.

"Tobacco retailer" means an entity who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco products to consumers and includes the owner of a tobacco retail location.

§ -2 Prohibition; presumption; local standard. (a) Beginning January 1, 2020, a retailer, or any of the retailers agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product.

(b) There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer’s agents or employees, in the course of his or her agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor, including, but not limited to text, color, images, or all, on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

(c) This section does not preempt or otherwise prohibit the adoption of a local standard that imposes greater restrictions on the access of tobacco products than the restrictions imposed by this section. To the extent that there is an inconsistency between this section and a local standard that imposes greater restrictions on the access of tobacco products, the greater restriction on the access of tobacco products in the local standard shall prevail.

§ -3 Enforcement. (a) Any tobacco product or electronic smoking device, as those terms are defined in section -1, in the person's possession at the time of violation of section -2 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 section -2 has been committed.

(b) Any tobacco retailer who violates this chapter shall be fined $500 for the first offense. Any subsequent offenses shall subject the tobacco retailer to a fine not less than $500 nor more than $10,000.

SECTION 3. This Act shall be liberally construed to accomplish the purpose set forth in section 1 of this Act.

SECTION 4. All laws and parts of laws heretofore enacted that are in conflict with the provisions of this Act are hereby amended to conform herewith.

SECTION 5. 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 6. This Act, upon its approval, shall take effect on January 1, 2020.

INTRODUCED BY:

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BY REQUEST

THE SENATE	S.B. NO.	1247
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII