SB 2681: Keiki Caucus; Cigarettes, Tobacco Products, and Electronic Smoking Devices; Sale; Regulation; County Authority

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", which contain significantly higher levels of nicotine per inhalation compared to conventional cigarettes.  Electronic smoking devices have played a major role in the increase in youth nicotine addiction rates, which had previously been on the decline.

     The legislature also finds that counties are uniquely positioned to quickly address the health needs of their communities 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 were 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 the State took action.

     The legislature finds that the rate of tobacco use among the 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.

     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 "sales 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."  (Emphasis added.)  Section 328J-11.5(b), Hawaii Revised Statutes, 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 is the state law that regulates smoking.  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 Statutes, 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 Statutes, 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 acknowledges that most counties, including the county of Hawaii, city and county of Honolulu, and county of Maui, have introduced local legislation to prohibit the sale of flavored tobacco products to address the unique susceptibility of youths to the marketing of such products.  This prohibition is not in conflict with and is more stringent than the restrictions of chapter 328J, Hawaii Revised Statutes.  However, this legislation cannot be enacted until existing state law preempting county ordinances on the sale of tobacco products is repealed.

     The legislature finds that a flexible 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 highly 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 null and 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 on July 1, 2026.

Report Title:

Keiki Caucus; Cigarettes, Tobacco Products, and Electronic Smoking Devices; Sale; Regulation; County Authority

Description:

Repeals existing law that preempts local ordinances or regulations that regulate the sale of cigarettes, tobacco products, and electronic smoking devices and voids any existing local laws and regulations conflicting with the state law governing smoking.  Allows counties to adopt ordinances that regulate the sale of cigarettes, tobacco products, and electronic smoking devices that do not conflict with and are more stringent than the state law that governs smoking.

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