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HB1573
HOUSE OF REPRESENTATIVES
H.B. NO.
1573
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII
A BILL FOR AN ACT
relating
to Health
.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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SECTION 1.
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Chapter 28, Hawaii Revised Statutes, is
amended by adding a new section to part I to be appropriately designated and to
read as follows:
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�28-
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Electronic
smoking device and e-liquid manufacturers; certification; directory; penalties.
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(a)
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No later than October 1, 2026, and annually
thereafter, every manufacturer of an electronic smoking device or e-liquid sold
in the State, whether directly or through a dealer, a distributor, an importer,
a retailer, a wholesaler, or similar intermediary or intermediaries, shall
certify under penalty of perjury on a form and in the manner prescribed by the
department, that:
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(1)
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The manufacturer
has received a marketing granted 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;
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(2)
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The manufacturer
is in compliance with state laws, including this chapter, chapter 245, and
chapter 486P; and
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(3)
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The
manufacturer is in compliance with federal laws, including title 15 United
States Code section 376, title 15 United States Code section 376a, title 18
United States Code section 1716, and title 21 United States Code section 331.
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(b)
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The certification form shall separately list
each brand name; product name; category, including disposable electronic
smoking device, power unit, device, and e-liquid; and flavor for each
electronic smoking device and e-liquid that is sold in the State.
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(c)
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Each annual certification form shall be
accompanied by:
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(1)
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A copy of the
marketing granted order issued by the United States Food and Drug
Administration pursuant to title 21 United States Code section 387j; and
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(2)
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A payment of $1,000
for each electronic smoking device and e-liquid each time a manufacturer
submits a certification form for that product.
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(d)
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The information submitted by the manufacturer
pursuant to subsection (c)(1) shall be considered confidential business or
commercial information and shall not be disclosed pursuant to sections 92F-13
and 92F-19(b).
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The manufacturer may
redact certain confidential commercial or financial information under
subsection (c)(1).
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(e)
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A manufacturer required to submit a
certification form pursuant to this section shall notify the department within
thirty days of any material change to the certification form, including the
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 or
any court 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.
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(f)
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Beginning January 1, 2027, the department shall
maintain and make publicly available on the department's official website a
directory that lists all manufacturers of electronic smoking devices and
e-liquids and all electronic smoking devices and e-liquids, including brand
names, product names, categories, and flavors, for which certification forms
have been submitted and approved by the department.
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The department shall update the directory to
ensure accuracy, and shall establish a process to provide dealers, distributors,
importers, retailers, wholesalers, and other relevant parties notice of the
initial publication of the directory and changes made to the directory.
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(g)
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No manufacturer of electronic smoking devices
or e-liquids shall be included or retained in the directory if the department determines
that any of the following apply:
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(1)
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The manufacturer
fails to provide a complete and accurate certification as required by
subsection (a);
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(2)
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The manufacturer
submits a certification that does not comply with the requirements of
subsections (b) and (c)(1);
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(3)
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The
manufacturer fails to include with its certification the payment required by
subsection (c)(2);
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(4)
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The
manufacturer sells products in the State required to be certified under this
section during a period when either the manufacturer or the product has not
been certified and listed on the directory; or
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(5)
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The information
provided by the manufacturer in its certification is determined by the
department to contain false information or contain material misrepresentations
or omissions.
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(h)
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Beginning January 1, 2027, or on the date
that the department makes the directory described in subsection (f) available
for public inspection on the department's official website, whichever is later,
electronic smoking devices and e-liquids not included in the directory shall
not be sold for retail sale in the State or to a consumer in the State, either
directly or through
a dealer, a
distributor, an importer, a retailer, a wholesaler, or similar intermediary or
intermediaries
.
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After publication
of the directory, electronic smoking devices and e-liquids not listed in the
directory and intended for retail sale in the State or to a consumer in the
State shall be subject to seizure, forfeiture, and destruction or disposal, and
shall not be purchased or sold for retail sale in the State or to a consumer in
the State except as provided in this subsection; provided that the cost of the
seizure, forfeiture, and destruction or disposal shall be borne by the person
from whom the products are confiscated.
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(i)
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The following penalties shall apply to
violations of this section:
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(1)
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A dealer, a distributor, an importer, a
retailer, or a wholesaler who sells or offers for sale an electronic smoking
device or e-liquid for retail sale in the State or to a consumer in the State
that is not included in the directory described in subsection (f) shall be
subject to a civil penalty of $500 for each individual electronic smoking
device or e-liquid offered for sale in violation of this section; provided
that:
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(A)
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For a second violation under this paragraph
within a twelve-month period, the civil penalty shall be no less than $750 and
no more than $1,000 per product;
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(B)
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For a third violation under this paragraph
within a twelve-month period, the civil penalty shall be no less than $1,000 and
no more than $1,500 per product; and
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(C)
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For a fourth violation under this paragraph
within a twelve-month period, the civil penalty shall be no less than $1,500 and
no more than $2,000 per product;
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(2)
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A manufacturer whose electronic smoking
devices or e-liquids are not listed in the directory and who causes the
products that are not listed to be sold for retail sale in the State or to a
consumer in the State, whether directly or through a dealer, a distributer, an
importer, a retailer, a wholesaler, or similar intermediary or intermediaries,
shall be subject to a civil penalty of $10,000 for each individual electronic
smoking device or e-liquid offered for sale in violation of this section.
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In addition, any manufacturer that falsely
represents any information required by a certification form shall be guilty of
a misdemeanor for each false representation;
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(3)
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In an action to enforce this section, the
State shall be entitled to recover costs, including the costs of investigation,
seizure, forfeiture, destruction, disposal, expert witness fees, and reasonable
attorney's fees; and
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(4)
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Any violation of this section shall
constitute an unfair method of competition and an unfair and deceptive act or
practice in the conduct of any trade of commerce under section 480-2.
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(j)
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Any nonresident manufacturer or foreign
manufacturer of electronic smoking devices or e-liquids that has not registered
to do business in the State as a foreign corporation or business entity shall,
as a condition precedent to having the nonresident manufacturer's or foreign
manufacturer's electronic smoking devices or e-liquids listed or retained in
the directory described by subsection (f), 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.
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Service under this section shall constitute
legal and valid service of process on the manufacturer.
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The nonresident manufacturer or foreign
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.
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(k)
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The department may examine all records,
including tax returns and reports under chapter 245, required to be kept or
filed under this chapter and chapter 245, and books, papers, and records of any
dealer, distributor, importer, retailer, or wholesaler of electronic smoking
devices and e-liquids in the State for the purpose of determining compliance
with this section.
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Every person in
possession of any books, papers, and records, and the person's agents and
employees, shall be directed and required to give the department the means,
facilities, and opportunities for the examinations.
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(l)
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The department may inspect the operations,
premises, and storage areas of any entity engaged in the sale of electronic smoking
devices or e-liquids, or the contents of a specific vending machine, during
regular business hours.
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This inspection
shall include inspection of all statements, books, papers, and records in
whatever format, including electronic format, contents of cartons, and shipping
or storage containers, pertaining to the acquisition, possession,
transportation, sale, or use of electronic smoking devices or e-liquids, to
verify compliance with this section.
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Every entity in possession of any books, papers, and records, and the
entity's agents and employees, shall be directed and required to give the
department the means, facilities, and opportunities for the examinations.
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(m)
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If the department has reasonable cause to
believe and does believe that electronic smoking devices or e-liquids are being
acquired, possessed, transported, kept, sold, or offered for sale in violation
of this section, the department may investigate or search the vehicle or
premises in which the electronic smoking devices or e-liquids are believed to
be located.
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If electronic smoking
devices or e-liquids are found in a vehicle, premises, or vending machine in
violation of this section, the electronic smoking devices or e-liquids, vending
machine, vehicle, or other tangible personal property containing those
electronic smoking devices or e-liquids and any books and records in possession
of the entity in control or possession of the electronic smoking devices or
e-liquids may be seized by the department and shall be subject to forfeiture as
provided in this section.
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(n)
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The department may adopt rules pursuant to
chapter 91 necessary for the purpose of this section.
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Rules adopted to implement this section shall
be exempt from the public notice and public hearing requirements of chapter 91.
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(o)
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All payments, fees, and penalties collected
pursuant to this section shall be deposited to the credit of the tobacco
enforcement special fund, established pursuant to section 28-15, for
administration and enforcement of this section.
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(p)
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As used in this section:
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"Dealer"
has the same meaning as in section 245-1.
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"Department"
means the department of the attorney general.
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"Distribute",
"distributes", or "distribution" has the same meaning as in
section 245-1.
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"Electronic
smoking device" has the same meaning as in section 245-1.
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"E-liquid"
has the same meaning as in section 245-1.
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"Entity"
means one or more individuals, a company, corporation, a partnership, an
association, or any other type of legal entity.
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"Retailer"
has the same meaning as in section 245-1.
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"Sale"
or "sold" has the same meaning as in section 245-1.
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"Sell"
has the same meaning as in section 245-1.
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"Vehicle"
means an automobile, airplane, motorcycle, motorboat, or other motor-propelled
vehicle.
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"Wholesaler"
has the same meaning as in section 245-1.
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SECTION
2.
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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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SECTION
3.
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New statutory material is
underscored.
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SECTION
4.
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This Act shall take effect on July 1,
2026.
INTRODUCED BY:
_____________________________
Report Title:
AG;
Electronic Smoking Devices; E-Liquids; Marketing Granted Order; Directory;
Penalties
Description:
Requires
electronic smoking device and e-liquid manufacturers to certify to the
Department of Attorney General annually that the manufacturer received a
Marketing Granted Order from the federal Food and Drug Administration and that
the manufacturer is in compliance with federal regulations and state laws.
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Requires the Department to compile and make
public a directory of all electronic smoking device and e-liquid manufacturers
and products duly certified.
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Establishes
penalties for manufacturers that fail to comply with the certification
requirements and for other parties that sell products that are not in the
directory.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.