Hawaii 2022 Regular Session

Hawaii House Bill HB1698 Compare Versions

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11 HOUSE OF REPRESENTATIVES H.B. NO. 1698 THIRTY-FIRST LEGISLATURE, 2022 STATE OF HAWAII A BILL FOR AN ACT relating to tobacco products. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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4343 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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4747 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. Annually, $526,000,000 in health care costs are directly attributed to smoking in the State. 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 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 further finds that, while there has been a decline in the use of combustible cigarettes over the last decade, there has been a dramatic increase in the use of electronic smoking devices, including electronic cigarettes, 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. In 2019, thirty-one per cent of middle school students and forty-eight per cent of public high school students tried electronic smoking devices. Today, eighteen per cent of middle school students and almost a third of high school students vape. Current use of electronic smoking devices by county is even more problematic, with figures exceeding thirty per cent in Hawaii, Maui, and Kauai counties. These rates are higher than the national average, demonstrate a disturbing trend of youth nicotine use, and threaten to undermine the historic decline in combustible cigarette use. The popularity of electronic cigarettes among youth is especially concerning, as these products contain nicotine salts. The United States Surgeon General noted in the 2016 report titled "E-Cigarette Use Among Youth and Young 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." 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; however, it 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. It is no coincidence that the number of electronic cigarette flavors has skyrocketed in recent years, with more than fifteen thousand unique electronic cigarette flavors identified in a 2018 study. Hawaii has experienced the heightened promotion of electronic cigarette products that offer flavors designed to appeal to the State's youth, such as candy, fruit, chocolate, mint, Kona coffee, Maui mango, shaka strawberry, and Molokai hot bread. Additionally, many of the packages are designed to resemble popular candies, such as Jolly Ranchers and Sour Patch Kids. The legislature additionally finds that young people and people of color are disproportionately using flavored tobacco products, including menthol. 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. The 2021 National Youth Tobacco Survey found that eighty-five per cent of youth electronic cigarette users reported using flavored products, with fruit, sweet flavors like candy or desserts, mint, and menthol reported as the most popular flavors. According to the 2010 study, "Smoking and Tobacco Use in Hawaii", seventy-eight per cent of Native Hawaiian and Pacific Islander adult smokers consume menthol cigarettes, compared to forty-two per cent of Caucasian adult smokers. A 2018 study also indicated that sixty-seven per cent of Filipino adult smokers preferred menthol cigarettes. A recent report also 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, five states, California, Massachusetts, New Jersey, New York, and Rhode Island, and hundreds of localities have enacted legislation to prohibit the sale of flavored tobacco products, including menthol. 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 prohibit the sale or distribution in Hawaii of all flavored tobacco products, including products with menthol. SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows: "§712- Sale of flavored tobacco products prohibited. (1) Beginning January 1, 2023, it shall be unlawful for any retailer or any agents or employees of the retailer to sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product. (2) A statement or claim directed to consumers or the public that the tobacco product has or produces a characterizing flavor, 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 characterizing flavor made by a manufacturer or an agent or employee of the manufacturer in the course of the person's agency or employment, is prima facie evidence that the tobacco product is a flavored tobacco product. (3) Any flavored tobacco product found in the retailer's possession that is in violation of this section shall be considered contraband, promptly seized, summarily forfeited to the State, and destroyed by law enforcement following the conclusion of an administrative or judicial proceeding finding that a violation of this section has been committed and shall not be subject to the procedures set forth in chapter 712A. (4) Any retailer who violates this section shall be fined $1,000 for the first offense, $2,000 for the second offense, and $5,000 for a third or subsequent offenses. In addition, a retailer shall be responsible for all costs associated with the disposal of any confiscated products found to be in violation of this section. (5) 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 for 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. (6) For the purposes of this section: "Characterizing flavor" means a taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product that is distinguishable by an ordinary consumer. Characterizing flavors include but are not limited to tastes or aromas relating to any candy, chocolate, vanilla, honey, fruit, cocoa, coffee, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information in the absence of a distinguishable taste or aroma, or both. "Cigarette" means any roll for smoking made wholly or in part of tobacco, irrespective of size and shape and whether or not the tobacco is flavored, adulterated, or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco. "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product. "Distinguishable" means perceivable by either the sense of smell or taste. "Electronic smoking device" has the same meaning as defined in section 712-1258(7). "Entity" means one or more individuals, a limited liability company, corporation, a partnership, an association, or any other type of business. "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor. "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. "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 the owner of a tobacco retail location. "Tobacco product" has the same meaning as defined in section 712-1258(7). "Tobacco retail location" means any premises where tobacco products are sold or distributed to a consumer, including but not limited to any store, bar, lounge, cafe, stand, outlet, vehicle, cart, location, vending machine, or structure." SECTION 3. Section 712-1258, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows: (7) For the purposes of this section: "Electronic smoking device" means any electronic product, or part thereof, whether for one-time use or reusable, that can be used to [aerosolize and] deliver nicotine or [other substances] another substance to the person inhaling from the device, including but not limited to an electronic cigarette, electronic cigar, electronic cigarillo, [or] electronic pipe, vaping pen, hookah pen, or any other similar device that relies on vaporization or aerosolization, and any cartridge or other component of the device or [related] product. "Electronic smoking device" includes any liquid or gel capable of use in an electronic smoking device that can be used by a person to simulate smoking in the delivery of nicotine or any other substance intended for human consumption through inhalation of favor or aerosol from the product. "Electronic smoking device" does not include cigarettes; drugs, devices, or combination products approved 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 cannabis or manufactured cannabis products under chapter 329D, including devices used to aerosolize, inhale, or ingest manufactured cannabis products manufactured or distributed in accordance with section 329D-10(a). "Tobacco product" means any product containing, made of, or derived from tobacco [that contains] or nicotine [or other substances and] that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by other means. "Tobacco product" includes but is not limited to a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. "Tobacco product" does not include drugs, devices, or combination products approved for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act." SECTION 4. 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 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. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 8. This Act shall take effect on January 1, 2023. INTRODUCED BY: _____________________________
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4949 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. Annually, $526,000,000 in health care costs are directly attributed to smoking in the State.
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5151 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 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.
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5353 The legislature further finds that, while there has been a decline in the use of combustible cigarettes over the last decade, there has been a dramatic increase in the use of electronic smoking devices, including electronic cigarettes, 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. In 2019, thirty-one per cent of middle school students and forty-eight per cent of public high school students tried electronic smoking devices. Today, eighteen per cent of middle school students and almost a third of high school students vape. Current use of electronic smoking devices by county is even more problematic, with figures exceeding thirty per cent in Hawaii, Maui, and Kauai counties. These rates are higher than the national average, demonstrate a disturbing trend of youth nicotine use, and threaten to undermine the historic decline in combustible cigarette use.
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5555 The popularity of electronic cigarettes among youth is especially concerning, as these products contain nicotine salts. The United States Surgeon General noted in the 2016 report titled "E-Cigarette Use Among Youth and Young 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."
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5757 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; however, it 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.
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5959 It is no coincidence that the number of electronic cigarette flavors has skyrocketed in recent years, with more than fifteen thousand unique electronic cigarette flavors identified in a 2018 study. Hawaii has experienced the heightened promotion of electronic cigarette products that offer flavors designed to appeal to the State's youth, such as candy, fruit, chocolate, mint, Kona coffee, Maui mango, shaka strawberry, and Molokai hot bread. Additionally, many of the packages are designed to resemble popular candies, such as Jolly Ranchers and Sour Patch Kids.
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6161 The legislature additionally finds that young people and people of color are disproportionately using flavored tobacco products, including menthol. 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. The 2021 National Youth Tobacco Survey found that eighty-five per cent of youth electronic cigarette users reported using flavored products, with fruit, sweet flavors like candy or desserts, mint, and menthol reported as the most popular flavors. According to the 2010 study, "Smoking and Tobacco Use in Hawaii", seventy-eight per cent of Native Hawaiian and Pacific Islander adult smokers consume menthol cigarettes, compared to forty-two per cent of Caucasian adult smokers. A 2018 study also indicated that sixty-seven per cent of Filipino adult smokers preferred menthol cigarettes. A recent report also 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.
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6363 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 legislation to prohibit the sale of flavored tobacco products, including menthol. 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.
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6565 Accordingly, the purpose of this Act is to prohibit the sale or distribution in Hawaii of all flavored tobacco products, including products with menthol.
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6767 SECTION 2. Chapter 712, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
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6969 "§712- Sale of flavored tobacco products prohibited. (1) Beginning January 1, 2023, it shall be unlawful for any retailer or any agents or employees of the retailer to sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product.
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7171 (2) A statement or claim directed to consumers or the public that the tobacco product has or produces a characterizing flavor, 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 characterizing flavor made by a manufacturer or an agent or employee of the manufacturer in the course of the person's agency or employment, is prima facie evidence that the tobacco product is a flavored tobacco product.
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7373 (3) Any flavored tobacco product found in the retailer's possession that is in violation of this section shall be considered contraband, promptly seized, summarily forfeited to the State, and destroyed by law enforcement following the conclusion of an administrative or judicial proceeding finding that a violation of this section has been committed and shall not be subject to the procedures set forth in chapter 712A.
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7575 (4) Any retailer who violates this section shall be fined $1,000 for the first offense, $2,000 for the second offense, and $5,000 for a third or subsequent offenses. In addition, a retailer shall be responsible for all costs associated with the disposal of any confiscated products found to be in violation of this section.
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7777 (5) 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 for 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.
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7979 (6) For the purposes of this section:
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8181 "Characterizing flavor" means a taste or aroma, or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product that is distinguishable by an ordinary consumer. Characterizing flavors include but are not limited to tastes or aromas relating to any candy, chocolate, vanilla, honey, fruit, cocoa, coffee, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information in the absence of a distinguishable taste or aroma, or both.
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8383 "Cigarette" means any roll for smoking made wholly or in part of tobacco, irrespective of size and shape and whether or not the tobacco is flavored, adulterated, or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco.
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8585 "Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet, that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.
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8787 "Distinguishable" means perceivable by either the sense of smell or taste.
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8989 "Electronic smoking device" has the same meaning as defined in section 712-1258(7).
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9191 "Entity" means one or more individuals, a limited liability company, corporation, a partnership, an association, or any other type of business.
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9393 "Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor.
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9595 "Labeling" means written, printed, pictorial, or graphic matter upon a tobacco product or any of its packaging.
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9797 "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.
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9999 "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 the owner of a tobacco retail location.
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101101 "Tobacco product" has the same meaning as defined in section 712-1258(7).
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103103 "Tobacco retail location" means any premises where tobacco products are sold or distributed to a consumer, including but not limited to any store, bar, lounge, cafe, stand, outlet, vehicle, cart, location, vending machine, or structure."
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105105 SECTION 3. Section 712-1258, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:
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107107 (7) For the purposes of this section:
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109109 "Electronic smoking device" means any electronic product, or part thereof, whether for one-time use or reusable, that can be used to [aerosolize and] deliver nicotine or [other substances] another substance to the person inhaling from the device, including but not limited to an electronic cigarette, electronic cigar, electronic cigarillo, [or] electronic pipe, vaping pen, hookah pen, or any other similar device that relies on vaporization or aerosolization, and any cartridge or other component of the device or [related] product. "Electronic smoking device" includes any liquid or gel capable of use in an electronic smoking device that can be used by a person to simulate smoking in the delivery of nicotine or any other substance intended for human consumption through inhalation of favor or aerosol from the product. "Electronic smoking device" does not include cigarettes; drugs, devices, or combination products approved 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 cannabis or manufactured cannabis products under chapter 329D, including devices used to aerosolize, inhale, or ingest manufactured cannabis products manufactured or distributed in accordance with section 329D-10(a).
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111111 "Tobacco product" means any product containing, made of, or derived from tobacco [that contains] or nicotine [or other substances and] that is intended for human consumption or is likely to be consumed, whether smoked, heated, chewed, absorbed, dissolved, inhaled, or ingested by other means. "Tobacco product" includes but is not limited to a cigarette, cigar, pipe tobacco, chewing tobacco, snuff, snus, or an electronic smoking device. "Tobacco product" does not include drugs, devices, or combination products approved for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act."
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113113 SECTION 4. Section 328J-11.5, Hawaii Revised Statutes, is repealed.
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115115 ["[§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.
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117117 (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.
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119119 (c) Nothing in this chapter shall be construed to limit a county's authority under section 328J-15."]
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121121 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.
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123123 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.
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125125 SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
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127127 SECTION 8. This Act shall take effect on January 1, 2023.
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131131 INTRODUCED BY: _____________________________
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133133 INTRODUCED BY:
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135135 _____________________________
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141141 Report Title: Flavored Tobacco Products; Sale; Ban Description: Prohibits the sale of all flavored tobacco products. Establishes fines and penalties for violations. Effective 01/01/2023. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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149149 Flavored Tobacco Products; Sale; Ban
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155155 Prohibits the sale of all flavored tobacco products. Establishes fines and penalties for violations. Effective 01/01/2023.
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163163 The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.