City Council Chair Tommy Waters and Council member Matt Weyer are introducing a measure to prohibit the sales of flavored tobacco products on Oahu.

But their draft measure will only take effect if a 5-year-old state law that stripped authority from Hawaii’s four counties to regulate or restrict the sales and use of tobacco and nicotine products is overturned or suspended.

If that law were to disappear, Bill 46 would enact a so-called trigger ban on flavored tobacco products — including electronic cigarettes and other vaping devices — that target youth smokers.

“This trigger ban is part of a larger issue, which involves the counties being preempted from regulating the sale of tobacco products,” Waters told the Honolulu Star-Advertiser via email. “Act 206, Session Laws of Hawaii 2018 nullified any existing local ordinances or policies that restricted the sale of tobacco products.”

Among other things, Act 206 does not require retailers or wholesalers of electronic smoking devices to pay the cigarette or tobacco tax — a type of tax typically levied by federal, state and local governments, including cities and counties — nor does it require tobacco retailers to secure cigarette or tobacco tax licenses or permits, according to the state Department of Taxation.

In general, cigarettes and other tobacco products are subject to excise taxes on the state and federal levels.

In Hawaii, the cigarette tax is $3.20 per a pack of 20. Cigarettes also are subject to state sales tax of about 35 cents per pack, which sees a total tax per pack of $3.55. The average cost of a pack of cigarettes in Hawaii is $8.99, ranking the state among the most expensive places to smoke in the United States, according to SalesTaxHandbook.com, a website that tracks sales tax laws in all 50 states for businesses and consumers.

Meantime, tobacco tax money collected by the state is substantial.

In 2022 the state Department of Taxation brought in almost $96.9 million from such taxes. Of that amount, $86.02 million was collected from Oahu, while the next highest — Hawaii County — saw $5.07 million going toward state coffers, according to state reports.

Of the overall cigarette and tobacco tax monies collected that year, the state directed more than $31 million — or about 32% — toward cancer research, trauma and medical services, and community health centers, the state reported.

But Waters wants to see state control over tobacco reduced.

Before 2018, he said all of the counties — particularly Honolulu — regularly made policy regarding the sale or use of tobacco and nicotine products.

“They restricted its use at restaurants, parks, beaches, bus stops and in cars with children — all before the state took action,” he said. “By putting this ordinance forward we are simply doing what we have done historically, taking action on the issues that impact the residents of this island, especially for the protection of our keiki, who have led this initiative from the beginning.”

As defined under Bill 46, a flavored tobacco product is “any tobacco product containing a characterizing flavor or that imparts a cooling or numbing sensation during consumption of a tobacco product.”

And it’s that flavoring, Waters said, that eventually hooks children to nicotine.

“When asked why they use tobacco, young people consistently say it is because they like the flavors,” he said.

Moreover, he notes the 2022 American Lung Association’s State of Tobacco Control report gave Hawaii an “F” grade for failing to prevent access to flavored tobacco products such as fruity-flavored electronic smoking devices.

“If you ask a teacher at a local middle or high school, they will tell you that e-cigarette use has led to disruptive behavior in their classrooms and an increase in mental health issues for their students,” he said.

As drafted, Bill 46 states, “The escalating use of electronic smoking devices, commonly known as ‘vapes,’ has led to a significant rise in youth nicotine addition. A 2019 State of Hawaii Department of Health study revealed that over 30 percent of high school students in Hawaii regularly use electronic smoking devices. These devices have been linked to severe lung disease, potential harm to brain development and acute nicotine poisoning.

“The City Council finds that the detrimental health effects and the addictive nature of these products necessitate a comprehensive approach to regulate their sale and distribution,” the measure reads. “It is therefore proposed that a trigger ban on flavored tobacco products be implemented to protect public health, particularly the health of our youth, and to prevent the further spread of nicotine addiction.

“While the preemption of the counties regulating the sale of tobacco has not yet been overturned, this ordinance will initiate a trigger ban on flavored tobacco products should Act 206 be overturned or suspended,” Bill 46 reads.

According to Waters, he’d like to see Bill 46 advance quickly toward possible approval.

“By introducing this bill now, as keiki go back to school, we are reiterating our request to the state to give us back our power to regulate the sale of tobacco and telling Big Tobacco that they cannot control the future of our island home,” he said. “I urge my colleagues on the county councils throughout the state to take similar action.”

Meanwhile, as drafted, Bill 46 is short on specifics over how it would be implemented or enforced.

“The scope of such a program would be the City and County of Honolulu, and the enforcing agency will be discussed as this bill moves forward,” he said.

The measure is expected to receive its first reading at the full City Council meeting at 10 a.m. Wednesday.