HB2441

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. According to the Centers for Disease Control and Prevention's 2014 "Best Practices for Comprehensive Tobacco Control Programs" guide, $526,000,000 in health care costs are directly attributed to smoking in the State of Hawaii.

Furthermore, in a 2016 report titled "E-Cigarette Use Among Youth and Young Adults" (2016 E-Cigarette Use report), the United States Surgeon General explained that ninety-five per cent of all smokers start smoking before the age of twenty-one. A 2017 study published in the American Journal of Preventive Medicine found that eighty-one per cent of youth who ever used a tobacco product report that the first product they used was flavored. Flavored tobacco products promote youth initiation to tobacco use and push young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke, thereby increasing the appeal of tobacco products.

Menthol is used by the tobacco industry because it has a cooling and numbing effect and can reduce the throat irritation caused by 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 to nicotine. The popularity of electronic cigarettes among youth is concerning. The combination of enticing flavors and nicotine salts allows higher levels of nicotine to be inhaled with less irritation. In the 2016 E-Cigarette Use report, the United States Surgeon General stated that, "compared with older adults, the brain of the youth and young adults is more vulnerable to the negative consequences of nicotine exposure. The effects include addiction, priming for use of other addictive substances, reduced impulse control, deficits in attention and cognition, and mood disorders."

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. According to the 2011 and 2015 Hawaii Youth Tobacco Survey, during these four years, the proportion of youth experimenting with electronic smoking devices increased six-fold among middle school youth and four-fold among high school youth. According to the 2017-2021 Hawaii Youth Risk Behavior Survey, twenty-four per cent of middle school and forty-one per cent of public high school students had tried electronic smoking devices. The 2017-2021 Hawaii Youth Risk Behavior Survey also indicates that thirteen per cent of middle school and twenty-three per cent of high school students currently vape. The 2017-2021 Hawaii Youth Risk Behavior Survey also shows the prevalence is higher in the neighbor island counties with high school vaping exceeding twenty-seven per cent for Hawaii, Maui, and Kauai. These rates rank among the highest in the country. The elevated use of electronic smoking devices has led to a significant rise in youth nicotine addiction.

Furthermore, while the 2009 Family Smoking Prevention and Tobacco Control Act, P.L. 111-31 (Tobacco Control Act), prohibited characterizing flavors, including fruit and candy flavorings, in cigarettes, it did not ban menthol in cigarettes or the use of characterizing flavors in other tobacco products. The Tobacco Control Act provided the United States Food and Drug Administration with the authority to regulate cigarettes, roll-your-own tobacco, and smokeless tobacco, but required the Food and Drug Administration to undertake an extensive rulemaking process to extend its regulatory authority to include e-cigarettes. Delays in the regulatory process allowed the tobacco industry and electronic smoking device industry to significantly increase the introduction of and extensively market flavored non-cigarette tobacco products, especially in electronic smoking devices. It is no coincidence that the number of electronic cigarette flavors have skyrocketed in recent years. In a 2018 study published in The Journal of Medical Internet Research, the count of flavor labels was reported to have more than doubled from 7,776 in 2013-2014 to 15,586 in 2016-2017. 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 orange soda, apple mui, Kona coffee, Maui mango, shaka strawberry, lychee ice, and Molokai hot bread. Additionally, many of the packages are designed to look like candies popular with children, such as Jolly Ranchers and Sour Patch Kids.

Furthermore, young people are disproportionately using flavored tobacco products, including menthol. According to the 2019 Hawaii Youth Risk Behavior Survey, an average of fifty-nine per cent of Hawaii's high school cigarette smokers and thirty-eight per cent of middle school cigarette smokers used menthol.

Current surveillance data show that menthol cigarette smoking is high among the general population in Hawaii with further gender and racial disparities. According to the 2020 Behavioral Risk Factor Surveillance System, sixty-three per cent of adult smokers in Hawaii usually smoke menthol cigarettes. The 2020 Behavioral Risk Factor Surveillance System also shows that prevalence is high among specific ethnic groups with seventy-nine per cent of Filipinos, seventy-eight per cent of Native Hawaiians, and sixty-nine per cent of Japanese usually smoking menthol cigarettes. Furthermore, the 2020 Behavioral Risk Factor Surveillance System shows that female smokers in Hawaii smoke menthol cigarettes at significantly higher rates than men - seventy-five per cent versus fifty-one per cent comparatively.

Additionally, after California banned flavored e-cigarettes and menthol cigarettes in 2022, the tobacco industry developed a new way to replace the menthol flavor and market these new products as "non-menthol" products. These products contain a new synthetic agent, which purports to create a cooling sensation similar to menthol without using menthol and menthol's characteristically minty odor. These products can facilitate smoking initiation, similar to menthol, as they are marketed to impart cooling sensations in users.

Given the significant threat to public health posed by flavored tobacco products, including those with menthol and those that produce cooling sensations, five states, including Massachusetts, New Jersey, New York, Rhode Island, and California, and three hundred ninety-five localities have enacted laws prohibiting the sale of flavored tobacco products. These laws now protect over twenty-five per cent of the United States population. The legislature finds that 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 and products that produce cooling sensations, and prohibit the mislabeling of products as nicotine-free.

SECTION 2. Chapter 321, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . SALE OF FLAVORED TOBACCO PRODUCTS

§321-A Definitions. As used in this part, unless the context otherwise requires:

"Cigarette" has the same meaning as in section 245-1.

"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.

"Department" means the department of health.

"Director" means the director of health.

"Distinguishable" means perceivable to the sense of smell, taste, or touch, or more than one or all of these.

"Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to a person inhaling from the device, including but not limited to, an electronic cigarette, electronic cigar, electronic pipe, vape pen, or electronic hookah. "Electronic smoking device" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, and subject to the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.).

"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" does not include:

(1) Prescription drugs;

(2) Cannabis for medical use pursuant to chapter 329 or manufactured cannabis products pursuant to chapter 329D; or

(3) Medical devices used to aerosolize, inhale, or ingest prescription drugs, including manufactured cannabis products described in section 329D-10.

"Entity" has the same meaning as in section 245-1.

"Flavored tobacco product" means any tobacco product that imparts:

(1) A taste or odor distinguishable by an average consumer, other than the taste or odor of tobacco, either prior to, during, or after the consumption of a tobacco product, or more than one or all of these, including but not limited to, any tastes or odors relating to fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, mint, wintergreen, menthol, herb, or spice; or

(2) A cooling or numbing sensation distinguishable by an average consumer prior to, during, or after the consumption of such tobacco product, or more than one or all of these.

"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 an owner, agent, or employee of a tobacco retail location.

"Tobacco product" means:

(1) Any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;

(2) Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or

(3) Any component, part, or accessory of any item described in paragraph (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.

"Tobacco product" does not mean drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).

"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.

§321-B Sale of flavored tobacco products; mislabeling as nicotine-free. (a) Beginning January 1, 2025, it shall be unlawful for any retailer to:

(1) Sell, offer for sale, or possess with the intent to sell, or offer for sale, a flavored tobacco product; or

(2) Mislabel as nicotine-free, or sell or market for sale as nicotine-free, any e-liquid product that contains nicotine.

(b) A statement or claim, 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 flavor other than tobacco, or that the tobacco product imparts a cooling or numbing sensation, made by a manufacturer or an agent or employee of the manufacturer, and directed to consumers or the public shall be prima facie evidence that the tobacco product is a flavored tobacco product. This includes but is not limited to public statements that a product has a minty or cooling effect, such as describing the product as "chill," "ice," "fresh," "arctic," or "frost."

(c) Any tobacco product found in a retailer's possession that is in violation of this part shall be considered contraband and may be seized by an inspector or be subject to immediate destruction or disposal in accordance with rules adopted by the department. The cost of proper disposal of electronic smoking devices and e-liquids as hazardous waste pursuant to rules adopted pursuant to section 342J-4, shall be borne by the retailer.

(d) Any retailer who violates this part shall be subject to a fine not less than $100 nor more than $1,000 for each separate offense. Each day of each violation constitutes a separate offense. Any fines collected by the department shall be deposited to the credit of the general fund.

(e) Notwithstanding any other law to the contrary, any county may adopt a rule or ordinance that places greater restrictions on the access to tobacco products than provided in this part. In the case of a conflict between the restrictions in this part and any county rule or ordinance regarding access to tobacco products, the more stringent restrictions shall prevail.

§321-C Inspectors; authority and access to records. (a) The director may appoint, commission, or contract for services of a third party one or more inspectors as the exigencies of the enforcement of this part may require. Persons appointed, commissioned, or contracted for services under this part shall have and may exercise all the powers and authority outlined in the rules adopted pursuant to section 321-D.

(b) Information necessary to investigate violations of this part shall be made available to the department and any appointed, commissioned, or contracted inspectors of the department.

§321-D Administrative rules. (a) The department shall adopt rules pursuant to chapter 91 to effectuate the purposes of this part.

(b) No later than June 30, 2025, the department shall adopt interim rules, which shall be exempt from chapter 201M and from the public notice and public hearing requirements of chapter 91, to effectuate the purposes of this part; provided that the interim rules shall remain in effect until January 1, 2031, or until rules are adopted pursuant to subsection (a), whichever occurs sooner.

(c) The department may amend the interim rules adopted pursuant to subsection (b), exempt from chapter 201M and the public notice and public hearing requirements of chapter 91; provided that any amended interim rules shall remain in effect until January 1, 2031, or until rules are adopted pursuant to subsection (a), whichever occurs sooner.

§321-E Contract for services. Subject to section 26-36, the department may contract the services of a third party in accordance with chapter 103D for enforcement, inspections, or any other services needed to administer this part."

SECTION 3. Section 328J-11.5, Hawaii Revised Statutes, is repealed.

["~~[§328J-11.5] Statewide concern.~~ (a) Sales of cigarettes, tobacco products, and electronic smoking devices are a statewide concern. It is the intent of the legislature to regulate the sale of cigarettes, tobacco products, and electronic smoking devices in a uniform and exclusive manner.

(b) All local ordinances or regulations that regulate the sale of cigarettes, tobacco products, and electronic smoking devices are preempted, and existing local laws and regulations conflicting with this chapter are null and void.

~~(c) Nothing in this chapter shall be construed to limit a county~~'~~s authority under section 328J-15.~~"]

SECTION 4. The department of health shall establish two full-time equivalent (2.0 FTE) program specialist positions to carry out the purposes of this Act, including reviewing, processing, and initiating inspections under the authority of the department of health and one full-time equivalent (1.0 FTE) hearings officer position to preside over administrative hearings and other related hearings duties to carry out the purposes of this Act.

SECTION 5. There is appropriated out of the general revenues of the State of Hawaii the sum of $1,000,000 or so much thereof as may be necessary for fiscal year 2024-2025 to carry out the purposes of this Act, including the hiring of necessary staff.

The sum appropriated shall be expended by the department of health.

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. 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 8. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 9. Statutory material to be repealed is bracketed and stricken.

SECTION 10. This Act, upon its approval, shall take effect on July 1, 2024.

INTRODUCED BY:

_____________________________

BY REQUEST

HOUSE OF REPRESENTATIVES	H.B. NO.	2441
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII