Hawaii: A generational ban on tobacco?

5 February 2023

By Grant Phillips and Kelsey Walling, West Hawaii Today

Hawaii could be the first state in the nation to ban the sale and possession of tobacco for an entire generation.

Senate Bill 148 proposes the ban on tobacco for anyone born on or after Jan. 1, 2003. The ban includes traditional cigarettes, cigars, chewing tobacco, e-cigarettes and vapes.

“If you’re born on or after Jan. 1, 2003, you’ve never been able to smoke legally, so it’s not taking away a right people currently have,” said Oahu Sen. Stanley Chang, a Democrat who introduced the bill. “The state has the power to regulate tobacco. It has the power to ban adults from buying tobacco, 18- to 20-year-olds, for example, so I don’t see why this wouldn’t be a matter of state regulation.”

Hawaii has a history of innovative tobacco legislation. In 2016, the state became the first in the nation to raise the legal age of purchasing tobacco to 21.

“I don’t know how far this will go, because it pushes the envelope a bit,” said Peggy Mierzwa, director of policy and advocacy at Hawaii Public Health Institute. “More and more, people are starting to see the harm that it does to kids, though, and so more and more folks are going, ‘Okay, we need to do something about this.’”

A similar state bill banning cigarettes was proposed in 2019, but that bill raised the minimum age of purchasing cigarettes by a decade each year, culminating in 2024, when only those over 100 years old would be allowed to purchase cigarettes.

The bill received some support and nationwide attention, but failed to get through the House Committee on Health, then chaired by Rep. John Mizuno of Honolulu.

“Any bills that attempt to limit the public health consequences of smoking are going to be controversial,” Chang said. “This new one, I think, has the advantage of being very clear, because these are individuals. We’re not taking away anyone’s current rights, but we are drawing a line in the sand for folks in the future.”

Unlike the Second Amendment that protects gun ownership, the Constitution does not consider smoking a fundamental right. In 2012, a federal appeals court upheld a ruling against a smoker who challenged an anti-smoking ordinance in Missouri.

“It’s a radical proposal, but I think it’s one that’s worth talking about just because of the carnage that smoking causes every year,” said Oahu Sen. Karl Rhoads, a Democrat who co-introduced the bill. “In the U.S. alone, 440,000 people a year die from smoking, and 40,000 of them are not even smokers — it’s second-hand smoke. It’s an underappreciated problem, and that’s why I was willing to support what is a pretty radical idea.”

The state Department of Health estimates $526 million is spent annually on health care directly attributed to smoking. In contrast, Hawaii generated $102.5 million in cigarette excise taxes in 2020, and $10.7 million from excise taxes on other tobacco products.

“The amount of tax revenue is not greater than, for example, the direct health care costs attributable to smoking,” Chang said.

Ryan Kadota, owner of Kadota Liquor in Hilo, expressed concerns about the bill, stating it didn’t make sense and would not be sustainable to ban certain ages from purchasing tobacco products while others would still be allowed.

“I agree that inhaling anything into your lungs is inherently bad for you, but so is ingesting alcohol, red meat and many other things we do every day,” he said. “I just don’t see this going anywhere. I think there is an issue with flavored vape products, but this particular ban would hurt many businesses like convenience stores and smoke shops.”

Legislators also addressed the bill’s potential impact on retail outlets.

“I think we can work with the small business owners,” Chang said. “The reality is, people who are not spending on cigarettes or tobacco products will probably be spending on other things and more productive sectors of the economy.”

Rhoads was less concerned about the legislation’s impact on retailers.

“If your business model relies on other people dying from your product, I just don’t care,” he said. “The people who bear the brunt of this are the ones who die from it. And it’s not just deaths, it’s all kinds of illnesses that people suffer from.”

Other hurdles mentioned by lawmakers include opposition by tobacco company lobbyists.

“There’s going to be resistance, partly from the tobacco industry, because they’re well-funded,” Rhoads said. “That’s why (tobacco) hasn’t been banned 50 years ago.”

Rhoads, Chang and co-introducer Sen. Brandon Elefante of Oahu recently signed a pledge saying they will not accept campaign donations from tobacco companies.

But the bill also was co-introduced by Hilo Sen. Lorraine Inouye and Oahu Sen. Michelle Kidani, both Democrats who accepted $1,000 in campaign contributions this year from Altria, one of the world’s largest producers of tobacco. Altria owns Philip Morris USA, the company behind Marlboro cigarettes, as well a percentage of the e-cigarette company JUUL Labs, and John Middleton, the manufacturer of Black &Mild cigars.

Neither Inouye nor Kidani responded to requests for comment in time for this story.

In December, New Zealand passed a similar law banning the sale of cigarettes to anyone born after 2008.

The country of Bhutan also enacted a tobacco ban in 2005, but after trading on the black market increased, the country reversed its decision.

“I don’t think that would be a new concern,” said Chang regarding black markets. “The reality is, a lot of underage people smoke today already.”

If approved, the law would take effect Jan. 1, 2024.

Violations for possession would result in a first-time fine of $10 and up to $50 fines and potential community service for repeat offenders.

Violations by those selling the products would result in $500 fines for a first offense and up to $2,000 fines for repeat offenses.

Email Grant Phillips at gphillips@hawaiitribune-herald.com