For high school senior Zoey Duan, a pre-session meeting with state House leadership was a sign of changing tides. Maybe 2022 would be the year the Legislature finally banned the sale of the alluringly flavored tobacco products that had gripped her peers in an enduring vaping epidemic.

The Punahou School student had reason to be excited Speaker Scott Saiki, health committee chair Rep. Ryan Yamane and vice chair Rep. Adrian Tam had committed to pushing the issue through the House, where previous iterations of the ban had gone to die.

So she and her fellow activists were dismayed when the flavor ban bill left Yamane’s committee nearly double in length and stuffed with what she says were “poison pill” amendments meant to “tank the bill and make sure it never passes.”

Yamane denied trying to kill the bill, saying the changes were necessary to increase the viability and scope of the ban. He said he was “shocked” at the negative reactions from advocates and agencies.

“The intent was to try to make the bill transparent and open,” he said Wednesday. “I know they’re trying to characterize it as demon amendments, but I’m kind of saddened because part of our job (as lawmakers) is to try to fix holes in bills that are not being addressed and unintended consequences.”

Representative Ryan Yamane looks up to the gallery as lawmakers make introductions of guests.
Under Rep. Ryan Yamane’s purview, a series of amendments were added to a bill that would ban the sale of flavored tobacco products, jeopardizing the measure’s future, advocates say. Cory Lum/Civil Beat/2022

‘Poison Pills’ Or Necessary Amendments?

But critics pointed out that Yamane, the chair of the House Health, Human Services and Homelessness Committee, has received thousands of dollars in campaign contributions from tobacco and vaping companies over the years.

While Yamane denied the donations influenced his decision-making as the bill advanced to the Senate, the controversy highlights the ethical gray area surrounding money in politics and legislative maneuvering that has increasingly alienated the public.

House Bill 1570 is the latest in a series of attempts to rein in the e-cigarette flavors that have left millions of American kids and young adults dependent on nicotine. Despite being an early adopter of tobacco control laws, Hawaii has not implemented a ban on the sale of fruity or dessert flavored e-cigarettes that teenagers find most popular.

The changes in the vaping legislation include mandates for reporting and testing requirements from state agencies that advocates and officials said were onerous and would make the ban difficult to enforce.

“It’s disheartening to us that something that is so serious would be compromised by these amendments,” said Amanda Fernandes, policy and advocacy director for the Hawaii Public Health Institute. “It is a very common tactic for the tobacco industry to lobby for these types of poison pills to be inserted into otherwise good tobacco policy.”

The bill initially enjoyed backing from a wide range of state agencies and public health organizations. However, it has since lost the support of the Hawaii Department of Health and the attorney general’s office, the two agencies responsible for enforcing the ban, raising the possibility of a veto if it reaches the governor in its amended form.

“Nobody is asking for these amendments – the advocates are not divided, the advocates are pretty united about this,” Fernandes said. “These enforcement mechanisms are untested, unvetted. We had never seen them before; nobody sent them to us or any other advocacy organization.”

Image showing the parts of HB1570 that were changed
In this visualization of House Bill 1570, the tobacco flavor ban, sections added to the original language under Rep. Ryan Yamane are highlighted in yellow. April Estrellon/Civil Beat/2022

Determining Flavor

Rep. Scot Matayoshi worked with the umbrella advocacy organization Coalition for a Tobacco-Free Hawaii to draft HB 1570, which Matayoshi described as a “very simple” prohibition on the sale of flavored tobacco or synthetic nicotine products by Hawaii retailers.

Yamane’s committee inserted six sections into the measure requiring action from the departments of health, education and the attorney general.

One substantial addition would instruct the DOH to develop a “standardized and scientific testing process” to detect the presence of flavors in tobacco products and to post protocols and testing results online.

Yamane said the changes were necessary to safeguard the state from potential legal challenges lodged by vaping companies over possible inconsistencies in enforcing the vaping flavor ban.

“If somebody accuses the process (of discerning flavors) as being biased or unfair, how do we defend that?” Yamane said. “If something is not labeled a flavor, is it going to be tested? And I want it to be, ‘yes, it’s going to be tested.’”

However, advocates say no other jurisdictions have needed similar testing regimens for their flavor bans to remain effective. Massachusetts, which in 2019 became the first state to ban all flavored tobacco and vaping products, defines a flavor as a “distinguishable taste or aroma … imparted or detectable before or during consumption.”

“If it smells like a flavor, tastes like a flavor, if there’s any indication on the labels of flavor, it’s a flavor,” said Scott Stensrud, the Hawaii Public Health Institute’s statewide youth coordinator.

Flavored e-cigarettes like the products shown in this screenshot from e-cigarette chain Volcano’s website would be banned under HB 1570. Screenshot/2022

And the DOH, which initially testified in support of the measure as “both a health equity and social justice issue,” cited the additional testing and reporting rules as “unreasonable” and said they make the current version untenable.

Another amendment requires the attorney general to track “all online sales of all tobacco products” and e-cigarettes, posting monthly updates on the estimated number of tobacco products that enter the state and the tonnage confiscated.

In adding these provisions, Yamane said he hoped to better impede the flow of flavored tobacco from out of state, saying that young people would turn to digital marketplaces if flavored vapes leave Hawaii storefronts.

“I don’t want our youth who are electronic savvy to get access to unknown supplies or, who knows, black market cartridges laced with dangerous substances through the internet where we don’t know where it’s coming from,” Yamane said.

Enforcement Concerns

The attorney general’s office opposed these changes, saying they would stretch tobacco unit resources and endanger millions of dollars in annual payments made available through the Master Settlement Agreement, an arrangement where tobacco companies agreed to pay billions of dollars annually to states in restitution for the public health crisis created by cigarettes.

“Adding responsibilities without additional resources puts (that funding at) risk,” deputy attorney general Richard Stacey said in written testimony.

Another pair of amendments requires the DOH to submit reports on all deposits and withdrawals from a range of special funds that support tobacco enforcement and prevention efforts, changes Yamane said were added to boost “transparency.” However, Stacey said the funds have “nothing to do with vaping.”

Further provisions would work with the state Department of Education to establish a vape “take back” program at public schools and require quarterly meetings with students in every school complex area to involve youth in combating the vaping epidemic.

For the young activists who helped draft the bill they hoped would lead to victory after a yearslong campaign, Yamane’s amendments came as an unwelcome surprise.

“Just looking at the bill in this new, distorted form felt very disheartening, and, from my personal experience, like a betrayal on what I perceived as a commitment from the representative to pushing forward our policy priority in the most effective way possible,” said Joshua Ching, a senior at Kamehameha Schools and a member of the Coalition for a Tobacco-Free Hawaii’s Youth Council.

Youth advocates Joshua Ching, left, and Zoey Duan, right, have been pushing for a flavor ban they say is essential to fighting the youth vaping epidemic. Coalition for a Tobacco-Free Hawaii/2022

Yamane acknowledged the meetings and said he sincerely tried to keep the well-being of Hawaii’s youth in mind when crafting the amendments.

“I was trying to make the bill stronger and involve more kids,” Yamane said. “Why wouldn’t you want to monitor internet sales and, for the testing, why wouldn’t you want to have something defensible against lawsuits?”

Beyond advocacy organizations and lawmakers, big tobacco has had a hand in the e-cigarette debate for years, donating hundreds of thousands of dollars to legislators in Hawaii, with one manufacturer, Reynolds American, even paying lobbyists to testify against HB 1570 in committee.

Between late 2006 and 2021, Yamane has received $17,500 in direct campaign contributions from tobacco and vaping companies, the second most of any state legislator during that time, according to state financial data. He has received almost $10,000 more from lobbyists who count tobacco companies among their clients.

Yamane said these contributions were to be expected, especially because he has held office since 2004 and served as health committee chair once before. By moving the bill forward and keeping menthol as a prohibited flavor, Yamane said he was acting against the wishes of the tobacco industry.

“People do donate, it doesn’t mean that we’re going to do their bidding at all,” Yamane said. “I don’t know why the (tobacco companies) donated. I don’t keep track of who gives the most, but that never came into any play in looking at these amendments.”

However, Lindsay Freitas-Norman, Campaign for Tobacco-Free Kids director for California and Hawaii, said the contributions paid to Yamane’s campaign “seem to track with the tobacco industry’s efforts elsewhere.”

“We don’t have solid proof where (the amendments) come from, but we know, in a lot of instances, that the members who introduced them are the members that tend to take the most money from the tobacco industry,” Freitas-Norman said.

Whether or not the donations played a factor in the flavor ban’s amendments, advocates say politicians’ dependence on private money gives big tobacco companies a significant advantage in the influence game.

Tobacco company Altria, which purchased a 35% stake in popular vape brand Juul in 2018, stands out as one of the biggest spenders among its peers in Hawaii. In 2021 alone, it reported spending over $200,000 on lobbying-related expenditures, according to ethics filings. In 2020, it spent over $208,000.

Since 2006, tobacco and e-cigarette companies have donated over $600,000 in direct contributions to state legislative campaigns. Altria accounted for 59% of this, donating $357,600.

Of the campaign contributions paid to Yamane, $12,000 came from Altria, with another $2,000 from Juul.

The Way Forward

The legal exchange of money for political leverage extends beyond the tobacco industry, said Sandy Ma, executive director of good government advocacy organization Common Cause Hawaii. Without more comprehensive campaign finance laws, she said, advocates, who are often volunteers, have few ways of competing against well-funded special interests.

“When a bill gets captured, it’s like, ‘oh, my goodness.’” Ma said. “Sometimes it takes years drafting legislation and getting everyone lined up and on board, that it’s just heartbreaking.”

Despite the many amendments tacked onto the bill, the vaping flavor ban still has a path forward this legislative session. The measure passed out of the House and crossed over to the Senate, where supporters will be lobbying for the bill to be reverted back to its original form.

Senator Jarrett Keohokalole speaks to Senator Lorraine Inouye during recess at the Capitol.
Senate Health Committee chair Sen. Jarrett Keohokalole said he has yet to review HB 1570 or its amendments. Cory Lum/Civil Beat/2022

The measure will first land in the Senate Health Committee. While committee chair Sen. Jarrett Keohokalole said he has not yet reviewed HB 1570 or its amendments, he said the Senate passed its own version of a tobacco flavor ban, which “pretty clearly establishes the Senate position on the issue.”

Senate Bill 3118, which has crossed into the House, reads much like the House bill in its unamended form.

If the House bill is indeed stripped of its amendments in the Senate and the measure enters conference committee between the two chambers, Yamane said he may be open to compromise. However, he said his amendments raise legitimate points about holes in the original bill.

The youth advocates said they will continue to fight for the original purpose of their bill.

“We’re trying to push for the civic engagement of all people, especially youth,” Ching said. “I don’t think that any kid should ever feel like their words are going to be taken out of context or exploited by their representatives for the politicians’ own political gain.”

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