On May 3, the Hawaii House of Representatives passed legislation that would ban the sale of flavored vaping products. Previously passed by the Senate, the bill now moves to the desk of Governor David Ige, a Democrat. If he signs it, Hawaii will become the fifth state to prohibit flavored e-cigarettes, joining Rhode Island, New Jersey, New York and Massachusetts.
Described as surviving a “rollercoaster legislative session” by Honolulu Civil Beat, House Bill 1570 passed the House with the needed two-thirds majority—36 state representatives voted in favor, 15 in opposition—and launched a debate that could pit the state against federal policy.
The lingering issue at hand concerns whether or not to retain the bill’s current PMTA “exemption”—a carveout, inserted by the Senate, to allow any flavored vaping products that might in future be authorized by the Food and Drug Administration (FDA), through its premarket tobacco product application (PMTA) process. Amid widespread scapegoating of flavors for a supposed youth vaping crisis, the FDA has authorized no flavored products so far.
The industry and consumer advocates, of course, oppose the bill on the grounds that it will strip from the market the flavored products that adults prefer to help them switch from cigarettes—deterring the adoption of safer products and prompting current vapers to potentially return to smoking. According to the CDC, Hawaii’s Hispanic and Native Hawaiian/Pacific Islander populations have historically had the state’s highest smoking rates, and young adults smoke more than older adults. Around 1,400 people in Hawaii die of smoking-related causes each year.
The most zealous political supporters of a total ban, he said, are “going so far as to poison-pill this bill so that they can come back in January without an exemption.
The supporters of the flavor ban appear split over the PMTA exemption. While some accept it as a logical compromise, public health nonprofits and some governmental bodies, including Hawaii’s Department of Health, have argued that the exemption would favor tobacco companies with the resources to get FDA authorization for their vaping products. They therefore think the current bill doesn’t go far enough, and want instead to prepare legislation that permanently bans all flavors, regardless of what the FDA decides. With the PMTA carveout, if any flavored vaping products achieve FDA authorization—a feat that seems increasingly improbable—those could legally be sold in Hawaii.
“What blows my mind is you’re seeing the state [potentially] superseding the FDA on public health decisions,” Scott Rasak, the chief operating officer of JOCOR Distro, which distributes vaping products throughout Hawaii, told Filter. The most zealous political supporters of a total ban, he said, are “going so far as to poison-pill this bill so that they can come back in January without an exemption in there. It’s baffling to me.”
It’s currently uncertain, as Rasak explained, which way Governor Ige will go.
“We haven’t made any progress on this issue in six-plus years of trying,” Representative Scot Matayoshi, a Democrat who introduced the original vaping bill in January 2021, told Filter. “This is the only bill that’s made it this far.”
“I lost a fierce ally in the Senate—Senator Roz Baker—who is not running for re-election, so I don’t think we’d make much progress next year if this were to die completely,” he continued. “This is probably our last shot in the foreseeable future of doing this.”
Rep. Yamane is not alone in finding the bill legally questionable.
Hawaii’s flavor-ban bill has been contentious from the start. It has received outsized attention in recent months after state Representative Ryan Yamane, a Democrat who has gotten funds from tobacco and vaping companies, suggested adding amendments like establishing a “standardized and scientific testing process” to determine whether flavors are actually present in products. Yamane argued that the amendments would have prevented potential lawsuits. But he didn’t get his wish, and that’s how Hawaii ended up with the current version of the bill: The Senate assured Rep. Matayoshi that Yamane’s amendments would be removed, and the body kept its promise, returning the bill essentially to its original form for a final House vote.
But Yamane is not alone in finding the bill legally questionable. The state attorney general’s office has warned that it might be flawed in another way. Because the bill is titled “Relating to the Youth Vaping Epidemic” but also bans all flavored tobacco products, like menthol cigarettes, it may leave itself open to a constitutional challenge, as “the Constitution of the State of Hawaii mandates that ‘[e]ach law shall embrace but one subject, which shall be expressed in its title.” All tobacco products, in other words, goes beyond the scope of the title.
“Public health activist groups, as well as the anti-harm-reduction bureaucrats at the Hawaii Department of Health, are up in arms about the exemption for PMTA products,” Greg Conley, the president of the American Vaping Association (AVA), told Filter. “Their reasons for opposing this bill—not enough products are banned—are diametrically opposed to ours, but we now appear to be on the same side. Governor Ige should veto this bill.”
Photograph by Edmund Garman via Flickr/Creative Commons 2.0
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