Ethical Marketing, Cultural Integrity, and Consumer Protection in Hawai‘i

Those efforts to grow tourism have been successful by traditional business measures. Even in the wake of the pandemic, while numerous travel restrictions were still in place and numbers were down compared to pre-pandemic levels, more than 6.7 million people visited Hawai‘i, and total visitor expenditures were reported at more than $13.15 billion. For the most geographically remote population center on Earth, with only 1.46 million residents, that is a lot! However, the impact of decades of substantial tourism on the environment, local communities, and Native Hawaiian culture has sparked serious debates. Indeed, a 2021 Resident Sentiment Survey conducted by the Hawai‘i Tourism Authority reported that 55% of residents on the island of O‘ahu—where about two-thirds of the state’s residents reside—felt that tourism had brought more benefits than problems. And, in communities on the island with higher representation of Native Hawaiians, the results were reported as “particularly critical” of tourism.

Social movements nationally and internationally related to environmentalism and indigenous human rights are broadly impacting public policy and industry, including tourism, and warrant cautious hope for positive progress. In the era immediately following World War II, Hawai‘i was marketed as a “sand, sea, and sun” playground for nonresidents, at increasingly budget-friendly price points over time. Today, the emphasis is on the local way of life, rooted in Native Hawaiian culture, promoting sustainability, local purchasing, respectful interaction with nature, and environmental stewardship. These values align with consumers’ growing preference to engage in and support ethical and sustainable practices. However, careful management is crucial to ensure this tourism pivot is regenerative, aligns with local values, and meets consumer expectations.

Part of the work for industry stakeholders—including the government, Hawai‘i businesses, local communities, the Native Hawaiian community, and consumers—is the management of the “Made in Hawaii” and “Hawaii Made” geographic and community source indicators. In this business climate, these indicators are commercially more valuable, and they present economic opportunities for local people and businesses, promoting authentic local products and preserving Hawai‘i’s cultural and environmental integrity. They also serve as important markers for consumers seeking locally sourced and culturally authentic goods and services. However, effectively harnessing these opportunities is challenging. Defining the indicators through legislation, educating consumers about their meanings, preventing confusion, and addressing abuses present ongoing debates and legal complexities that the state has grappled with for roughly the last 35 years.

“Made in Hawaii” Labeling and Advertising

Prior to 1991, state law claims arising from misrepresentation of product provenance as “made in Hawaii” or “from Hawaii” could be brought as a violation of Hawaii Revised Statutes (HRS) section 480-2, the unfair competition and business practices statute. In 1990, Hawai‘i’s Intermediate Court of Appeals reviewed a case involving claims of false and deceptive marketing of kukui nut lei and jewelry in Kukui Nuts of Hawai‘i Inc. v. R. Baird & Co. The goods importer had two labels attached to the product. Those labels conveyed mixed messages. Some content indicated the origin of the product as Taiwan, while the labels also described the deep historical and cultural relevance of kukui nuts in Hawai‘i and called them “genuine.” The court found that the labels “intended to persuade buyers, tourists in particular, to buy [the] products because they are made from the culturally and historically significant kukui nut. Without more, the descriptive labels would clearly lead a purchaser to believe that the products were made in Hawai‘i from a nut grown in Hawai‘i.” The case was remanded to determine numerous issues, including whether the label content indicating “made in Taiwan” was sufficient to offset the confusion created by the Hawai‘i content.

Kukui shined a light on the deceptive and confusing “made in Hawaii” commercial speech occurring in Hawai‘i. The next year in 1991, Hawai‘i’s legislature passed HRS section 486-119 as a part of the state’s measurement standards laws, defining the requirements for a product to be labeled and advertised as “made in Hawaii.” The statute requires that any products labeled or advertised as “made in Hawaii,” or as being from any place within the state of Hawai‘i, must (1) be manufactured, assembled, fabricated, or produced within the state; and (2) have had at least 51% of their wholesale value added by manufacture, assembly, fabrication, or production within the state. Eighteen years later, the state amended the statute to require that for perishable consumer commodities labeled or advertised as “made,” “produced,” or “processed” in Hawai‘i, the perishables must be wholly or partially manufactured, processed, or produced in the state and at least 51% of the wholesale value must be added by the in-state manufacture, processing, or production.

Several other state laws control product labeling indicating local origin, including “Ni‘ihau shells,” “Island fresh” milk, “Hawaii-Grown Macadamia Nuts,” and “Hawaiian-grown” roasted or instant coffee. Noncompliance with these rules can result in state enforcement leading to fines and orders to cease, desist, and take corrective action at the violator’s expense.

The statute does not indicate a private right of action to enforce these requirements. In a 2019 class action case filed in the U.S. District Court for the District of Hawai‘i, Maeda v. Pinnacle Foods Inc., a claim under HRS section 486-119 complained of “Hawaiian Kettle Style” chips and other snacks manufactured out-of-state. The claim failed. The court held that none of the three factors used to determine whether a private right of action exists cut in the plaintiff’s favor, including an absence of evidence that the state intended it. The court further noted that no prior examples had been identified of a private right of action being recognized in other cases.

The “Hawaii Made” Brand

Reminiscent of the legislative action that followed Kukui, shortly after Maeda in 2021, Hawai‘i enacted HRS section 201-3.5, creating the “Hawaii Made” program. The statute provides that the Hawai‘i Department of Business, Economic Development, and Tourism (DBEDT) will administer the program. As a part of the program, DBEDT is proclaimed the owner of the “Hawaii Made” trademark and tasked with taking various actions to promote and support “Hawaii Made” products. Further, the statute provides that using “Hawaii Made” in the labeling and advertising of a product requires in-state manufacturing, assembly, fabrication, or production similar to the requirements related to “Made in Hawaii” advertising outlined in HRS section 486-119. Penalties for misappropriating the “Hawaii Made” brand can include civil and administrative fines of up to $2,000 per day or for each separate offense and the issuance of stop-use and stop-sale orders.

The “Hawaii Made” program is promoted jointly by DBEDT, the Hawai‘i Department of Agriculture, and the Chamber of Commerce of Hawai‘i. It was formed in part to support local businesses suffering the economic impact of the COVID-19 pandemic. Over 100 companies are currently participating in the program and using the “Hawaii Made” trademark.

“Native Hawaiian Made” Goods

While these statutes and others exist at federal and state levels across the nation to prevent consumer deception caused by false “made in Hawaii” branding and advertising claims, the misrepresentations as seen in Kukui and Maeda are still prevalent in and outside the state. These misrepresentations, however, do not affect all manufacturers and businesses in Hawai‘i equally. A distinction that must be made, and often is not, is the difference between “Made in Hawaii,” the “Hawaii Made” brand, and a “Native Hawaiian Made” product or service.

While products and businesses may be “Made in Hawaii,” they are not necessarily made by Native Hawaiians or related to the indigenous culture of Hawai‘i. What Kukui illustrates, however, is that Native Hawaiian culture and history are evoked by product marketers to deceive and mislead. In Kukui, the court held that evoking specifically Native Hawaiian history, culture, and tradition was an intentional effort at a “Made in Hawaii” deception. By the same logic, these marketing practices leveraging Native Hawaiian culture and history are also an intentional effort at a “Native Hawaiian–made” deception. Yet, following Kukui, no statute was enacted to specifically protect Native Hawaiian artisans, Native Hawaiian culture, or consumers seeking to buy indigenous, locally made goods.

This gap is hurting an already at-risk yet critically important part of Hawai‘i’s culture and Hawai‘i’s attraction for visitors. In its 2021–2024 O‘ahu Destination Management Plan, the Hawai‘i Tourism Authority noted that Native Hawaiian–owned firms in the tourism industry are smaller, offer lower wages, and achieve lower sales than state averages, and as a result were at a greater risk of failing because of the pandemic. The report went on to say that the loss of these businesses “could lead to fewer authentic experiences in culture, art, entertainment, and recreation.” Indeed, it’s hard to understand how the loss and decline of Native Hawaiian businesses could have any other outcome.

There have been Native Hawaiian community lead efforts calling for help and change. In 2003, following a variety of abuses to Native Hawaiian culture and cultural property, the Native Hawaiian community gathered for a historic first formal ‘aha (gathering) on Native Hawaiian intellectual property. One outcome was the adoption of the Paoakalani Declaration, with calls to action for government and private actors to do more to stop cultural misappropriation and protect Native Hawaiian cultural integrity, cultural property, traditional knowledge, and intellectual property, with changes and advancements to intellectual property and other kinds of law as needed. In 2021, another historic ‘aha of the largest group of kumu hula adopted the Huamakahikina Declaration, similarly calling for the help of government and private actors to protect against the same abuses and gaps in the law that specifically are degrading the integrity of hula and Native Hawaiian culture more broadly.

Both declarations are consistent with calls for state action to protect indigenous human rights related to traditional knowledge and cultural integrity internationally recognized in the U.N. Declaration on the Rights of Indigenous People. Federal and state government response has been slow and modest, falling far short of the Native Hawaiian community’s needs and asks. A 2023 resolution adopted by the state legislature calling for a working group to develop recommendations regarding actions to protect Native Hawaiian intellectual property may result in another step in the right direction.

Conclusion

“Made in Hawaii,” “Hawaii Made,” and “Native Hawaiian Made” are all important indicators for uplifting local Hawaiian creators and businesses, and providing consumers with the indicators they need to make purchasing decisions. Law and policy in Hawai‘i have evolved significantly over the last 35 years to manage the indicators “Made in Hawaii” and “Hawaii Made.” “Native Hawaiian Made” or the functional equivalent needs similar consideration. In the meantime, consumers and businesses, as well as the lawyers who counsel them, should (1) be savvy to the law and nuance related to these issues; (2) avoid causing confusion, especially by appropriating Native Hawaiian culture; and (3) support local Hawai‘i and Native Hawaiian businesses when participating in the local economy, whether via tourism or off-island purchasing.

This article was written before the devastating wildfires on Maui. If you would like more information about the disaster response and relief efforts for the people of Maui, and how to help, please visit https://www.hawaiiancouncil.org or https://www.hawaiicommunityfoundation.org.