Where’s the Tax Stamp on that Eggplant?

by Tom Yamachika, President, Tax Foundation Hawaii

Being a lawmaker is never easy. Not only do you have to deal with throngs of agitated constituents on a daily basis, but often you are asked to give your stamp of approval to things you might not know about completely.

This past session gives us one interesting example. Health advocates approached a number of lawmakers about “e-cigarettes.” An e-cigarette is also known as a personal vaporizer (PV) or electronic nicotine delivery system (ENDS). It is a battery-powered vaporizer that is supposed to give a user a feel similar to tobacco smoking. Some e-cigarettes look like traditional cigarettes, but others do not. There are disposable and reusable versions. Typically the user inhales an aerosol, commonly called vapor, rather than cigarette smoke. This aerosol is generated when the device heats and atomizes a liquid solution known as e-liquid. E-liquids usually contain propylene glycol, glycerin, nicotine, and flavorings, but some e-liquids are sold without propylene glycol, without nicotine, or without flavors.

In any event, some people got the idea that e-cigarettes should be treated the same as regular cigarettes, and therefore should be taxed under our tobacco tax the same as regular cigarettes. Bills were introduced in the Legislature to accomplish this, such as SB 1032 and HB 145, which had gotten all the way to conference committee (but didn’t make it out).

SB 1032 would have added the following definition to “tobacco products”: “Any product containing nicotine, but not containing tobacco, that is intended for human consumption, whether chewed, smoked, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, and that has not been approved by the United States Food and Drug Administration for tobacco cessation or other medical purposes." Sounds like it does the trick, right?

Well, what about eggplant, green tomatoes, cauliflower, and potatoes?

“Excuse me?” you might be thinking. “What does that have to do with tobacco products?”

According to a 1993 article in the New England Journal of Medicine authored by three doctors at the University of Michigan, many common vegetables contain nicotine. The most nicotine is in eggplant, but there is also some in tomatoes, cauliflower, and potatoes. You would need twenty pounds of eggplant to get the amount of nicotine in one cigarette, but the nicotine is there. Does that eggplant contain tobacco? No. Is it intended for human consumption? Absolutely! Is it approved as a tobacco cessation product or for medical purposes? Not a chance. So guess what – if that bill became law then you might need a tobacco tax stamp for that eggplant!

(We pointed this out in testimony to the Legislature on earlier tobacco tax bills, such as SB 1220 and HB 1164. Some people gave us some weird looks, and no one seemed to see the humor. So we concentrated on pointing out that this definition would not pick up all of the e-cigarettes because some products contain no nicotine.)

It all goes to show that the task of writing laws is not easy. Even when lots of thought and deliberation goes into drafting the laws, it’s still possible to miss things and be faced with unintended results. When that happens, it’s back to the drawing board!

And hey! Who put this tobacco tax stamp on my potato chips?

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