HB1778

SECTION 1. The legislature finds that tobacco use remains the leading cause of preventable disease and death in the United States and Hawaii. Tobacco use is a serious public health problem that results in human suffering and loss of life and causes financial burdens on society and the health care system. Every year in the State, $526,000,000 in health care costs are directly attributed to smoking, while $142,000,000 in medicaid costs are related to smoking.

The legislature notes 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, such those with candy or fruit flavors, 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 a major driver of initiation and addiction. It 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 tobacco an appealing option for new users or young people and aids the transition to regular use. Essentially, menthol flavoring makes it easier to start smoking and harder to quit. The United States Centers for Disease Control and Prevention estimates that if menthol cigarettes were no longer available, four thousand four hundred additional adults in Hawaii would quit smoking.

Additionally, young people and people of color are disproportionately using flavored tobacco products, including menthol. The 2023 National Youth Tobacco Survey found that over eighty-nine per cent of e-cigarette users report using flavored products, with fruit, sweet flavors like candy or desserts, mint, and menthol reported as the most popular flavors. According to the 2021 Behavioral Risk Factor Surveillance System, eighty-seven per cent of Native Hawaiian and eight-four per cent of Filipino adult smokers in Hawaii consume menthol cigarettes, compared to forty-four per cent of Caucasian adult smokers.

The legislature also finds that the widespread use of electronic smoking devices among youth is concerning. 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. The latest estimates show that individual counties in Hawaii report current electronic smoking device use as high as twenty to thirty per cent among high school students and twelve to seventeen per cent among middle school students.

Use of electronic smoking devices has adverse physical and mental health impacts with potential lifelong consequences. 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." According to the American Heart Association, long-term use of electronic smoking devices can impair blood vessel function and increase risk for cardiovascular disease as well as increase depression and anxiety. Finally, electronic smoking devices produce acetaldehyde, acrolein, and formaldehyde, all of which can cause lung disease.

The legislature notes that in 2009, a 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 the 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.

The legislature further finds that it is no coincidence that the number of electronic cigarette flavors have skyrocketed in recent years, with more than fifteen thousand five hundred unique electronic cigarette flavors identified in a 2018 study. To compound the problem, the latest flavored tobacco products contain excessive levels of nicotine and use nicotine salts. For example, one popular electronic cigarette product that appeals to youth and young adults has the nicotine equivalent of about five hundred ninety cigarettes. Hawaii has experienced the heightened promotion of electronic smoking device 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 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.

Given the significant threat to public health posed by flavored tobacco products, including those with menthol, five states –- California, Massachusetts, New Jersey, New York, and Rhode Island –- and hundreds of localities have enacted policies to end 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:

(1) Prohibit the sale of flavored tobacco products, including products with menthol, and mislabeled e‑liquid products that contain nicotine; and

(2) Repeal language making the sale of cigarettes, tobacco products, and electronic smoking devices a statewide concern and preempting county ordinances and regulations.

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 and mislabeled e‑liquid products

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

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

"Department" means the department of health.

"Distinguishable" means the perceivable sense of smell, taste, or feel.

"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.

"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.).

"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 ordinary consumer, other than the taste or odor of tobacco, either before or during the consumption of the tobacco product, 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, tingling, or numbing sensation distinguishable by an ordinary consumer during the consumption of the tobacco product.

"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.

"Retail tobacco location" means any premises where tobacco products are sold or distributed 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. "Retailer" includes an owner, agent, or employee of a retail tobacco 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 the device, including e-liquids, 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.).

§321- Sale of flavored tobacco products; mislabeling as nicotine-free; prohibited. (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 subject to immediate destruction or disposal in accordance with rules adopted by the department. The cost of proper disposal of tobacco products as hazardous waste pursuant to rules adopted by the department shall be borne by the retailer.

(d) Any retailer who violates this part shall be subject to a fine no less than $100 nor more than $1,000 for each separate offense. Each day of each violation shall constitute 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 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."

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

SECTION 6. This Act shall take effect on January 1, 2025.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1778
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII