HOUSE OF REPRESENTATIVES	H.B. NO.	1854
THIRTY-SECOND LEGISLATURE, 2024
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. The legislature finds that tobacco use remains the leading cause of preventable death in the United States, including Hawaii. The legislature further finds that there has been a precipitous increase in recent consumer sales of electronic smoking devices, sometimes called "vapes" or "e‑cigarettes", which contain significantly higher levels of nicotine per inhalation compared to conventional cigarettes. The escalating use of electronic smoking devices has led to a significant rise in youth nicotine addiction. These devices have been linked to severe lung disease, potential harm to brain development, and acute nicotine poisoning.

The legislature finds that the rate of tobacco use among youth has increased to epidemic levels. According to the 2019 Hawaii State and Counties Youth Risk Behavior Surveys, 30.6 per cent of public middle school students and 48.3 per cent of public high school students have tried using electronic smoking devices. The survey also revealed that 17.7 per cent of middle school students and 30.6 per cent of high school students currently vape, numbers which have likely only increased.

The legislature also finds that counties are uniquely positioned to quickly address the health habits of their communities, such as youth vaping, and have been utilizing that ability to great success. Historically, Hawaii has passed forward-thinking legislation to address the high usage of tobacco products. These policies were first adopted at the county level to quickly address the counties' need to protect their communities from the relentless promotional targeting by tobacco companies. Regulations to raise the minimum age for the purchase of tobacco products to twenty-one years of age was first passed in the county of Hawaii, followed by other counties, and finally by the State to create uniformity. Likewise, laws that prohibit smoking in certain locations, as well as in motor vehicles when a keiki is present, were also initially adopted at the county level before action was taken by the State.

The legislature also finds that the tobacco companies have spent millions of dollars to ensure that they are developing and marketing products to young people to increase their sales and boost their yearly profits into the tens of billions of dollars. These companies have boundless resources to pour into targeting a new generation of addicts. Furthermore, the United States Food and Drug Administration, which is responsible for regulating tobacco products containing nicotine, has a lengthy authorization process with loopholes, long waiting periods, and little ability to regulate the ever-changing strategies of profit-focused tobacco companies.

The legislature acknowledges that section 328J-11.5(a), Hawaii Revised Statutes, provides that "[s]ales of cigarettes, tobacco products, and electronic smoking devices are a statewide concern" and that 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." Section 328J-11.5(b), Hawaii Revised Statues, preempts "[a]ll local ordinances or regulations that regulate the sale of cigarettes, tobacco products, and electronic smoking devices" and voids "existing local laws and regulations conflicting with" chapter 328J, Hawaii Revised Statutes, which regulates smoking. The tobacco industry has historically used preemption as a tactic to prevent local governments from adopting stronger tobacco control measures, thereby protecting its interests at the expense of public health.

Section 328J-11.5(c), Hawaii Revised Statutes, carves out an exception to the exclusivity of state regulations by setting forth that nothing in chapter 328J, Hawaii Revised Statutes, "shall be construed to limit a county's authority" to adopt ordinances; provided that the ordinance is more stringent than state law. The legislature acknowledges that the language in section 328J-11.5, Hawaii Revised Statues, read together with section 328J-15, Hawaii Revised Statutes, may create an ambiguity in the effectiveness of county ordinances that are not in conflict with chapter 328J, Hawaii Revised Statues, and the authority given to the counties in adopting ordinances that regulate the sale of cigarettes, tobacco products, and electronic smoking devices in their communities.

The legislature finds that an adaptive regulation system is needed to address the multibillion-dollar marketing campaigns of tobacco companies focused on our youth. All levels of government, including counties, need to collaborate with youth, their parents, and educational institutions, to quickly address the tobacco companies' predatory practices through the implementation of reasonable restrictions on the sale of and access to these addictive products.

Accordingly, the purpose of this Act is to:

(1) Repeal existing law that provides that all local ordinances or regulations that regulate the sale of cigarettes, tobacco products, and electronic smoking devices are preempted and that existing local laws and regulations conflicting with the state law on smoking are void; and

(2) Clarify that counties retain the authority to adopt ordinances that regulate the sale of cigarettes, tobacco products, and electronic smoking devices, as long as the ordinances do not conflict with and are more stringent than the state law on smoking.

SECTION 2. Section 328J-11.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]§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[.] to the extent reasonably possible.

[(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)] (b) Nothing in this chapter shall be construed to limit a county's authority [under] to enact ordinances that regulate the sale of cigarettes, tobacco products, and electronic smoking devices within the county in accordance with section 328J-15."

SECTION 3. Section 328J-15, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Nothing in this chapter shall prohibit a county from enacting ordinances that regulate the sale of cigarettes, tobacco products, and electronic smoking devices within the county; provided that the ordinances do not directly conflict with and are more stringent than the provisions of this chapter."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________
	By Request

Report Title:

Hawaii State Association of Counties Package; Tobacco Products; Regulation

Description:

Repeals existing law that provides that all local ordinances or regulations that regulate the sale of cigarettes, tobacco products, and electronic smoking devices are preempted and that existing local laws and regulations conflicting with the state law on smoking are void. Clarifies that counties retain the authority to adopt ordinances that regulate the sale of cigarettes, tobacco products, and electronic smoking devices, as long as the ordinances do not conflict with and are more stringent than the state law on smoking.

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