HB 1512: Prohibition; Sale; Labeling; Flavored Nicotine Products; Nicotine Product Flavor Enhancers; E-Liquids; Penalties; Appropriation

A BILL FOR AN ACT

relating to health.

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 disease and death in the United States.  In Hawaii, tobacco use accounts for one thousand four hundred annual deaths and $526,000,000 in annual health care costs directly attributed to smoking related diseases, according to the Centers for Disease Control and Prevention's 2014 "Best Practices for Comprehensive Tobacco Control Programs" guide.  Tobacco use is a serious public health problem in terms of the human suffering and loss of life it causes and is a financial burden on society and the State's health care system.

     The legislature further finds that 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 become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke, thereby increasing the appeal of tobacco products.

     The legislature additionally finds that menthol in particular 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 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.  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."

     Furthermore, delays in the United States Food and Drug Administration regulatory process of e-cigarettes have allowed the tobacco and electronic smoking device industries to significantly increase the marketing and production of electronic vaping devices.  According to a 2018 study published in the Journal of Medical Internet Research, the count of flavored tobacco products went from 7,764 in 2014 to 15,586 in 2017, a one hundred per cent increase.  Every year that passes youth become more exposed to the predatory practices of tobacco companies seeking a market for nicotine addiction.  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 POG, apple mui, luau punch, rainbow candy, lava burst ice, Shaka strawberry, lychee ice, Molokai Hot Bread, and lilikoi lychee.  Additionally, many of the packages are designed to look like candies popular with children, such as Jolly Ranchers and Sour Patch Kids.

     The legislature also finds that young people and people of color have high rates of use of flavored tobacco products, including menthol.  According to the 2023 Hawaii Youth Risk Behavior Surveillance System, among public high school students who are current cigarette smokers, an average of 14.1 per cent smoke menthol, and among public middle school students who are current cigarette smokers, an average of 7.1 smoke menthol.  According to the 2022 Behavioral Risk Factor Surveillance System, 63.7 per cent of adult smokers in Hawaii usually smoke menthol cigarettes.

     Furthermore, the 2022 Behavioral Risk Factor Surveillance System shows that prevalence is high among specific ethnic groups, with 70.8 per cent of Filipinos, 80.7 per cent of Native Hawaiians, and 66.9 per cent of Japanese usually smoking menthol cigarettes.  The 2021 National Youth Tobacco Survey report estimates that ending the sale of flavored tobacco in Hawaii would save the State at least $48,000,000 in long-term health care costs, prevent seven hundred premature smoking-related deaths, prompt over three thousand menthol cigarette smokers to quit, and prevent youth from initiating smoking with menthol cigarettes.

     Given the significant threat to public health posed by flavored tobacco products, including those with menthol, seven states — California, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Utah — and over three hundred ninety localities have enacted policies to end the sale of flavored tobacco products to some extent.  These laws now protect over twenty-five per cent of the United States' population.  Hawaii must also take steps to regulate these products to address the youth vaping epidemic and reduce tobacco-related health disparities.

     Of additional concern is the increased use of tobacco- and smoke-free oral nicotine pouches that come in different flavors and strengths.  These products are easier to conceal than cigarettes or vape products and may be used by youth who mistakenly believe that the lack of tobacco and smoke makes the product safer for consumption.  Furthermore, because these products do not contain tobacco, they can fall through the regulatory cracks, requiring a broader approach to addressing youth nicotine addiction.

     Accordingly, the purpose of this Act is to prohibit the sale of, offer for sale, or possession with the intent to sell or offer to sell, all flavored nicotine products and nicotine product flavor enhancers, including products with menthol, and prohibit the mislabeling of e-liquid 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 Nicotine PRODUCTS PROHIBITED

     §321-A  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.

     "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 the person inhaling from the device, including but not limited to an electronic cigar, electronic cigarette, electronic hookah, electronic pipe, or vape pen.  "Electronic smoking device" includes any component, part, or accessory of the device, and any substance that may be aerosolized or vaporized by the device, whether or not the substance contains nicotine.  "Electronic smoking device" does not include 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, 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).

     "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 prescription drugs, cannabis for medical use pursuant to chapter 329, or manufactured cannabis products pursuant to chapter 329D.

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

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

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

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

     "Inspector" means a person appointed, commissioned, or contracted by the department for the enforcement of this part pursuant to section 321-C.

     "Labeling" means written, printed, pictorial, or graphic matter upon a nicotine product or any of its packaging.

     "Nicotine" means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived, and includes nicotinic alkaloids and nicotine analogs.

     "Nicotine product" means:

     (1)  Any product containing, made of, or derived from 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, a pouch, lozenges, or snus;

     (2)  Any electronic smoking device and any substances that may be aerosolized or vaporized by the electronic smoking 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, hookahs, mouthpieces, pipes, rolling papers, and blunt or hemp wraps.

"Nicotine product" does not include 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.

     "Nicotine product flavor enhancer" means a product designed, manufactured, produced, marketed, or sold to produce a distinguishable flavor other than that of tobacco or to impart a cooling, tingling, or numbing sensation when added to a nicotine product.

     "Nicotine product retail location" means any premises where nicotine products are sold or distributed to a consumer, including but not limited to any bar, cafe, cart, location, lounge, outlet, stand, store, vehicle, vending machine, or structure.

     "Packaging" means a box, carton, pack, or container of any kind, or if no other container, any wrapping, including cellophane, in which a nicotine 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 nicotine products to consumers for any form of consideration.  "Retailer" includes an owner or agent of a nicotine product retail location.

     §321-B  Sale of flavored nicotine products and nicotine product flavor enhancers; mislabeling as nicotine-free.  (a)  Beginning January 1, 2027, 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 nicotine product or nicotine product flavor enhancer; 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 nicotine product's labeling or packaging that is used to explicitly or implicitly communicate that the nicotine product has a flavor other than tobacco, or that the nicotine product imparts a cooling or numbing sensation, made by a manufacturer, importer, or retailer, or an agent or employee of a manufacturer, importer, or retailer, and directed to consumers or the public shall be prima facie evidence that the nicotine product is a flavored nicotine 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 flavored nicotine product found in a retailer's possession that is in violation of this part may be considered contraband, be seized by an inspector, or be subject to immediate destruction or disposal by the retailer in accordance with rules adopted by the department pursuant to section 321-D.  The cost of proper disposal of electronic smoking devices and e-liquids as hazardous waste pursuant to rules adopted in accordance with section 342J-4 shall be borne by the retailer.

     (d)  Any retailer that violates this part shall be subject to a fine no less than $100 and no 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 an ordinance that places greater restrictions on the access to flavored nicotine products than the restrictions 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 flavored nicotine 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 may adopt rules pursuant to chapter 91 to effectuate the purposes of this part.

     (b)  No later than June 30, 2027, the department shall adopt interim rules, which shall be exempt from chapters 91 and 201M, to effectuate the purposes of this part; provided that the interim rules shall remain in effect until January 1, 2033, 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, 2033, or until rules are adopted pursuant to subsection (a), whichever occurs sooner.

     §321-E  Contract for services.  Subject to section 26-38, 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.  There is established      full-time equivalent (     FTE) program specialist positions to review, process, and initiate inspections under the authority of the department of health and      full-time equivalent (     FTE) hearings officer position to preside over administrative hearings and other related hearings duties as required under section 2 of this Act.

     SECTION 4.  There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2026-2027 to carry out the purposes of this Act, including the hiring of necessary staff, including      full-time equivalent (     FTE) program specialist positions and      full-time equivalent (     FTE) hearings officer position.

     The sum appropriated shall be expended by the department of health for the purposes of this Act.

     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.  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 7.  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 8.  This Act shall take effect on July 1, 2026.

Report Title:

Prohibition; Sale; Labeling; Flavored Nicotine Products; Nicotine Product Flavor Enhancers; E-Liquids; Penalties; Appropriation

Description:

Beginning 1/1/2027, prohibits the sale of flavored nicotine products and nicotine product flavor enhancers and the mislabeling of e-liquids as nicotine free.  Establishes penalties for violations.  Authorizes the Department of Health to appoint, commission, or contract for services of inspectors.  Establishes positions.  Appropriates funds. 

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