Bill Text: HI SB3385 | 2024 | Regular Session | Introduced
Bill Title: Relating To Health.
Spectrum: Moderate Partisan Bill (Democrat 7-1)
Status: (Introduced - Dead) 2024-01-29 - Referred to CPN/HHS, JDC/WAM. [SB3385 Detail]
Download: Hawaii-2024-SB3385-Introduced.html
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THE SENATE |
S.B. NO. |
3385 |
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THIRTY-SECOND LEGISLATURE, 2024 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
Relating to HEALTH.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
"§245- Electronic smoking device and e-liquid
directory. (a) By
August 1, 2024, and annually thereafter, every manufacturer of electronic
smoking devices or e-liquid containing nicotine that is sold in the State, whether
directly or through a distributor, wholesaler, retailer, or similar
intermediary or intermediaries, shall certify under penalty of perjury on a
form and in the manner prescribed by the department, that the manufacturer
agrees to comply with this chapter and that:
(1) The manufacturer has received a
marketing authorization or similar order for the electronic smoking device or
e-liquid from the United States Food and Drug Administration pursuant to title 21
United States Code section 387j; or
(2) The electronic smoking device or
e-liquid was marketed in the United States as of August 8, 2016; the
manufacturer submitted a premarket tobacco product application for the
electronic smoking device or e‑liquid to the United States Food and Drug
Administration pursuant to title 21 United States Code section 387j on or
before September 9, 2020; and the application either remains under review by
the United States Food and Drug Administration or a final decision on the
application is not otherwise in effect.
(b) A manufacturer shall submit a certification
form that separately lists each electronic smoking device and e-liquid that is
sold in the State.
(c) Each annual certification form required by
subsections (a) and (b) shall be accompanied by:
(1) A copy of the marketing
authorization or other order for the electronic smoking device or e-liquid
issued by the United States Food and Drug Administration pursuant to title 21 United
States Code section 387j, or evidence that the premarket tobacco product
application for the electronic smoking device or e‑liquid was submitted
to and received by the United States Food and Drug Administration and a final
authorization or order has not yet taken effect; and
(2) A payment of $500 for each
electronic smoking device and e-liquid the first time a manufacturer submits a
certification form for that product and a payment of $250 annually thereafter
for each electronic smoking device and e-liquid.
(d) A manufacturer required to submit a certification form pursuant to
subsections (a) and (b) shall notify the department within thirty days of any
material change to the certification form, including the issuance or denial of
a marketing authorization or other order by the United States Food and Drug
Administration pursuant to title 21 United States Code section 387j, or any
other order or action by the United States Food and Drug Administration that
affects the ability of the electronic smoking device or e-liquid to be introduced
or delivered into interstate commerce for commercial distribution in the United
States.
(e) The department shall maintain and make publicly available on the
department's website a directory that lists all electronic smoking device and
e-liquid manufacturers and electronic smoking devices and e-liquid for which
certification forms have been submitted and shall update the directory as
necessary to ensure accuracy.
(f) The department shall provide manufacturers notice and an opportunity to
cure deficiencies before removing manufacturers or products from the directory;
provided that:
(1) The department may not remove the
manufacturer or its products from the directory until at least fifteen days
after the manufacturer has been given notice of an intended action. Notice shall be sufficient and be deemed
immediately received by a manufacturer if the notice is sent either
electronically or by facsimile to an electronic mail address or facsimile
number, as the case may be, provided by the manufacturer in its most recent
certification filed under subsections (a) and (b); and
(2) The electronic smoking device or
e-liquid manufacturer shall have fifteen business days from the date of service
of the notice of the department’s intended action to establish that the
electronic smoking device or e-liquid manufacturer or its products should be
included in the directory.
(g) If a product is removed from
the directory, the department shall publish notice of the removal on the
department’s website. Each retailer and
distributor or wholesaler shall have thirty days from the date of publication
of the notice of removal to remove the product intended to be sold in the State
from its inventory and return the product to the manufacturer for
disposal. After thirty days following
publication of the notice of removal from the directory, the electronic smoking
devices and e-liquid of a manufacturer identified in the notice of removal and
intended for sale in the State shall be considered contraband and shall be subject
to seizure, forfeiture, and destruction, and shall not be purchased or sold in
the State.
(h) Beginning October 1, 2024, a
person shall not sell or offer for sale an electronic smoking device or
e-liquid in the State that is not included in the directory described by
subsection (e), and an electronic smoking device or e-liquid manufacturer shall
not sell, either directly or through a distributor or wholesaler, retailer, or
similar intermediary or intermediaries, an electronic smoking device or e-liquid
in the State that is not included in the directory described by subsection (e).
(i) A retailer may purchase
electronic smoking devices and e-liquid for resale only from a licensed
wholesaler or dealer with a valid license issued pursuant to this chapter.
(j) The following penalties shall
apply to violations of this section:
(1) A retailer who sells or offers for
sale an electronic smoking device or e-liquid in the State that is not included
in the directory or a retailer who sells or offers for sale in the State an
electronic smoking device or e-liquid after thirty days following publication
of the notice of removal of the product from the directory and intended for
sale in the State shall be subject to a civil penalty of $250 per day for each
product offered for sale in violation of this section until the offending
product is removed from the market or until the offending product is properly
listed on the directory; provided that:
(A) For a second violation within a twenty-four-month
period, the department also shall suspend the permit of the permittee for at
least fourteen days;
(B) For a third violation within a twenty-four-month
period, the department shall suspend the permit of the permittee for at least
sixty days; and
(C) For a fourth or subsequent violation
within a twenty-four-month period, the department shall suspend the permit of
the permittee for at least one year;
(2) A electronic smoking device or
e-liquid manufacturer whose electronic smoking devices or e-liquid products are
not listed in the directory and are sold in the State, whether directly or
through a distributor or wholesaler, retailer, or similar intermediary or
intermediaries, shall be subject to a civil penalty of $500 per day for each
product offered for sale in violation of this section until the offending
product is removed from the market or until the offending product is properly
listed on the directory. In addition,
any manufacturer that falsely represents any the information required shall be
guilty of a misdemeanor for each false representation;
(3) Any violation of this section shall
constitute an unfair method of competition and unfair and deceptive acts or
practices in the conduct of any trade of commerce under section 480-2; and
(4) In any action brought by the State
to enforce this section, the State shall be entitled to recover the costs of
investigation and prosecution, expert witness fees, court costs, and reasonable
attorney fees.
(k) The department shall have
authority to enforce compliance with this section, and may adopt rules
necessary to effectuate the purposes of this section.
(l) The department may examine the books,
papers, and records of any distributor, wholesaler, or retailer in the State,
for the purpose of determining compliance with this section. The department may make the inspections and
examinations at any time during ordinary business hours, and may inspect at the
times the premises and all desks, safes, vaults, and other fixtures and
furniture contained in or upon the premises for the purpose of ascertaining
whether electronic smoking devices and e-liquid products are held or possessed
in violation of this section.
(m) Any electronic smoking devices or
e-liquid offered for sale in the State in violation of this section shall be
declared to be contraband goods and may be seized by the department, the
department's agents, or employees, or by any law enforcement officer of the
State if directed by the department to do so, without a warrant.
(n) Each retailer and wholesaler
or dealer that sells or distributes electronic smoking devices or e-liquid in
the State shall be subject to at least two unannounced compliance checks
annually for purposes of enforcing this section. Unannounced follow-up compliance checks of
all noncompliant retailers and wholesalers or dealers shall be conducted within
thirty days after any violation of this section. The department shall publish the results of
all compliance checks at least annually and shall make the results available to
the public on request.
(o) Any nonresident or foreign
manufacturer that has not registered to do business in the State as a foreign
corporation or business entity shall, as a condition precedent to having its electronic
smoking devices or e-liquid listed or retained in the directory, appoint and
continually engage without interruption the services of an agent in the United
States to act as agent for the service of process upon whom all process, and
any action or proceeding against it concerning or arising out of the
enforcement of this section may be served in any manner authorized by law. Service under this section shall constitute
legal and valid service of process on the manufacturer. The manufacturer shall provide the name,
address, phone number, and proof of the appointment and availability of the
agent to, and to the satisfaction of, the department.
(p) Beginning January 31, 2025,
and annually thereafter, the department shall provide a report to the legislature
regarding the status of the directory, manufacturers and products included in
the directory, revenue and expenditures related to administration of this
section, and enforcement activities undertaken pursuant to this section.
(q) All fees and penalties
collected pursuant to this section shall be used for administration and
enforcement of this section."
SECTION 2. New statutory material is underscored.
SECTION 3. This Act shall take effect on July 1, 2024.
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INTRODUCED BY: |
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Report Title:
DOTAX; Cigarette and Tobacco Tax; Electronic Smoking Devices; E‑Liquids; Health; Directory; Penalties
Description:
Requires electronic smoking device of e-liquid manufacturers to submit certifications with the Department of Taxation annually, stating that products comply with federal regulations. Requires the Department of Taxation to maintain a directory. Imposes penalties.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
