A bill that would ban the sale of flavored tobacco products in the state has passed both chambers of the state Legislature and is on its way to Gov. David Ige for his signature.

The latest version of House Bill 1570 would prohibit the sale or distribution of all flavored tobacco products, including those with menthol, in Hawaii starting Jan. 1. In addition, the bill prohibits the mislabeling of products as nicotine-free.

Any retailer in violation of the ban is subject to a fine of up to $500 for the first offense and up to $2,000 for subsequent offenses.

Health advocates have for years been pushing for a ban on flavored vaping products, but many oppose this version of the bill because of a loophole they say defeats the bill’s very purpose, allowing banned products to be sold in the state anyway.

The loophole — which was inserted by the Senate — allows an exemption for tobacco products that have received a “marketing order” from the U.S. Food and Drug Administration.

The FDA requires manufacturers to obtain authorization for new tobacco products, including e-nicotine delivery systems, or e-vaping products, by submitting a “premarket tobacco product application.”

They must demonstrate that the marketing of the new tobacco product would be “appropriate for the protection of the public health” by showing benefits to adult smokers outweigh risks to youth.

While the FDA has turned away nearly 1 million products, it has authorized products — such as R.J. Reynolds’ Vuse Solo e-­vaping device and tobacco-flavored e-liquid pods and 22nd Century Group Inc.’s Moonlight Menthol cigarettes — which it says helps some smokers reduce their nicotine consumption.

State Rep. Scot Matayoshi (D, Kaneohe-Maunawili), who introduced the bill, said he opposed the loophole that was added in but that he thought it still accomplished its main goal of restricting the number of flavored tobacco products on the market.

The bill at one point was also amended to include a laundry list of stringent requirements, which in the end were removed.

“It’s a huge leap in the right direction, more than we’ve ever gotten before in the Legislature,” said Mata­yoshi. “What this would effectively do is take all flavored vaping products off shelves of all vape shops, of Foodland, Longs, Safeway, everywhere they’re readily available. That would make a huge impact.”

Matayoshi said he is committed to working on removing the loophole in the next legislative session. While the bill is not perfect, he said it was “an opportunity we cannot pass up.”

Numerous advocates that have worked for years to ban flavored tobacco products targeting youth, however, do not support the amended version of the bill.

Those opposed include the Coalition for a Tobacco­-Free Hawaii, a program of the Hawaii Public Health Institute, the Campaign for Tobacco-Free Kids, the American Lung Association and the state Department of Health.

Amanda Fernandes, policy and advocacy director for HPHI, said she was disappointed the bill now includes an “industry-drafted loophole” that would potentially still allow over 1,000 flavored tobacco products on store shelves in Hawaii.

Based on experience, she said if there is a loophole, “the tobacco industry is going to find and exploit it.”

“The solution to the youth vaping epidemic is a comprehensive approach,” she said. “We’ve applied lessons in decades of going up against big tobacco,” she said. “We’ve been making so much progress on that front, and now it seems we’re going backwards.”

DOH said it opposed the amended version of the bill because the “inclusion of the FDA language negates the original intent of the bill — which was to ban flavored vape products.”

Who proposed the loophole?

It came from Ann Chung, a registered lobbyist for Juul Labs Inc., which the state has filed suit against for unfair and deceptive acts and practices fueling the youth vaping crisis.

Chung submitted written testimony as an individual, requesting that the bill be amended to include an exemption for menthol and any products authorized by the FDA.

Her company, Chung Associates LLC, in 2019 was also a registered lobbying group for JOCOR Enterprise dba Volcano and Black Lava Vape, according to state records.

Lindsey Freitas, director of the Campaign for Tobacco-­Free Kids, said the amended bill would set a bad precedent for Hawaii.

“It will put into law that Hawaii is ceding its authority to act on tobacco issues to the federal government, something that would make the tobacco industry incredibly happy,” she said. “The ability for states to act on the sale of tobacco products is explicitly protected under Federal law, because it’s clear that a local community needs to maintain the ability to be responsive to the needs of its community.”

Because the exemption is written so broadly, she said, it does not actually remove any tobacco products currently on store shelves.

“The broad exemption applies to more than just products authorized through the PMTA process, and would include little cigars, menthol cigarettes, and smokeless tobacco,” she wrote in an email. “All of these products are used by the tobacco industry to target the youth in Hawaii.”

The FDA is also a mixed bag, she said, with a track record that falls far short of clearing the market of flavored e-cigarettes.

“While we agree that many of the products that have been removed are the most egregious, and definitely should be removed from the market, there are still many products, beyond just e-cigarettes, where stronger action by FDA is warranted,” she said. “Currently, a long list of products are still awaiting decisions including products that have been used to target our youth in some of the most pernicious ways.”

Furthermore, she said the FDA is subject to guidance from the administration in power, which could change its approach to the issue.

The American Lung Association also voiced strong opposition to the amended version of HB 1570, and requested the bill be held.

ALA said in a statement that it supported policies that would end the sale of all flavored tobacco products sold at all retailers, and comprehensive policies preventing kids from using tobacco.

However, ALA said “carving an exception” to a flavor ban for products authorized and yet to be authorized by the FDA would surrender Hawaii’s long-standing authority to determine what tobacco products are permitted to be sold to its residents.

“The bill would not accomplish what it is aiming to do, to protect youth from flavored tobacco products,” said ALA. “It is likely that menthol cigarettes, and many flavored cigars, flavored hookah tobacco and flavored smokeless tobacco products would be exempted under this legislation as currently written.”

Vaping among youth in Hawaii, meanwhile, is a growing epidemic, with an increasing number, including elementary school students, now reported to be experimenting with e-smoking devices.

According to a 2019 survey, nearly 1 in every 5 public middle school students and 1 out of every 3 public high school students on Oahu currently vape, with rates even higher on neighbor isles.

In 2020 a survey found 8 in 10 youth who use e- cigarettes used a flavored product.

Locally, companies market to youth with flavors like apple mui, Maui mango and lychee ice, along with packaging similar to popular candies. Youth also prefer menthol, which masks the harsh flavors of tobacco.

In testimony for the bill, there was broad acknowledgement of Hawaii’s youth vaping epidemic but disagreement over how it should be addressed.

Many vaping companies as well as people who vape questioned why there is not better enforcement for teens caught vaping.

The Hawaii Food Industry Association said tobacco products are federally regulated for good reason and that local bans would be difficult to enforce and would “simply create a large unregulated black market.”

In Hawaii, sale of tobacco and e-smoking devices to people under 21 has been banned since 2015.

Matayoshi said with a “take it or leave it” proposition, he decided to take what he considers a step in the right direction due to the urgency of the situation.

“It’s not like Hawaii has less of a problem than the mainland,” said Matayoshi. “We have much more of a problem. It’s more urgent for us. We can’t wait for the federal government to act. We have to act as a state because it’s our kids on the line.”