Delaware

Clean Indoor Air

Public Places

Smoking is not permitted in any indoor enclosed area to which the general public is invited or permitted, including restaurants, bars and gaming facilities; see the state law cited below for a more detailed list. The only exceptions are for: 1) private homes and automobiles, except when being used for child care or day care or when a vehicle is being used for the public transportation of children or as part of health care or day care transportation; 2) indoor areas where private social functions are being held when seating arrangements are under the control of the sponsor of the function; 3) privately-hired limousines; 4) up to 25 percent of hotel rooms rented to guests; and 5) fund raising functions sponsored by volunteer fire, ambulance or rescue companies, or by a fraternal benefit society.

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Government Buildings

Smoking is prohibited in all public buildings. A “public building” is defined as any building owned or operated by the state, including the legislative, executive and judicial branches of state government; any county, city, town, village or any other political subdivision of the state, public improvement or special district, public authority, commission, agency or public benefit corporation; or any other separate corporate instrumentality or unit of state or local government. Smoking is also specifically prohibited in public meetings, jury waiting and deliberation rooms, and courtrooms.

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Private Workplaces

Smoking is prohibited in all workplaces.

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Schools

Smoking is specifically prohibited in all public and nonpublic schools. Smoking is also prohibited in any other educational and vocational institutions.

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Child Care Centers

Smoking is prohibited in all child day care facilities, including home-based child care facilities.

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Health Facilities

Smoking is prohibited in all health care facilities, including hospitals, clinics and doctor’s offices. Smoking is also prohibited in retirement communities and nursing homes, not including private residences.

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Restaurants

Restaurants: Smoking is prohibited in all “food service establishments” which are defined as any indoor area open to the public or portion thereof in which the principal business is the sale of food for on-premises consumption including, but not limited to, restaurants, cafeterias, coffee shops, diners, sandwich shops or short order cafes. A food service establishment shall not include the bar area of such establishment. Any establishment which has been licensed by the Delaware Alcoholic Beverage Control Commission as a “restaurant” is considered a “food service establishment.”

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Bars: Smoking is prohibited in “bars,” which are defined as any indoor area open to the public operated primarily for the sale and service of alcoholic beverages for on-premises consumption and where the service of food is secondary to the consumption of such beverages. Any establishment which has been licensed by the Delaware Alcoholic Beverage Control Commission as a “taproom or tavern,” is considered a “bar.”

DEL. CODE ANN. tit. 16, §§ 2901 et seq. (2002).

Penalties/Enforcement

Where smoking is permitted, the person in charge shall display signs stating “Warning: Smoking Permitted”. Violators of Delaware’s Clean Indoor Air Act will be fined $100 for a first offense and at least $250 for each subsequent offense. The Delaware Department of Labor and Department of Health are responsible for the regulation, implementation, and enforcement of the Clean Indoor Air Act.

DEL. CODE ANN. tit. 16, §§ 2905 to 2907 (2002).

Tobacco Excise Tax

Cigarettes

Tax rate per pack of 20: $1.15

Date last changed: July 31, 2007 — from 55 cents to $1.15

Year first enacted: 1949

DEL. CODE ANN. tit. 30, § 5305(a) (2007).

Other Tobacco Products

Moist snuff: 54 cents/oz.

All other tobacco products: 15% of the wholesale price

DEL. CODE ANN. tit. 30, § 5305(b & c) (2008).

Revenue Collected

$86,488,000

Youth Access

Compliance/Enforcement

The Department of Safety and Homeland Security or its delegates shall be responsible for conducting annual, random, unannounced inspections at locations where tobacco products are sold or distributed to test compliance. Persons under the age of 18 may be enlisted by the department or its delegates to test compliance provided that such persons may be used only under the direct supervision of the department, its employees or delegates and only when written parental consent has been provided. The department shall adopt and publish guidelines for the use of persons under 18 in inspections. The department may enter into an agreement with any local law enforcement agency for delegation of inspection and enforcement within the local agency’s jurisdiction. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11, §§ 1125 & 1127 (1996).

Photo ID: A person engaged in the sale or distribution of tobacco products shall have the right to demand proof of age from a prospective purchaser or recipient of such products. “Proof of age” means a driver’s license or other identification with a photograph of the individual affixed thereon that indicates that the individual is 18 years old or older. Violation is subject to the same penalties as selling or distributing tobacco products to minors. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11, §§ 1116(b) (1992); 1126 (1996) & 1127 (1996).

Penalties for Sales to Minors

It shall be unlawful for any person to sell or distribute any tobacco product to another person who has not attained the age of 18 years or to purchase any tobacco product on behalf of another such person, except that this section shall not apply to the parent or guardian of another such person. Violators shall be fined $250 for the first offense, $500 for the second offense, and $1,000 for the third and all subsequent offenses within 12 months. The court may also order the Department of Finance to suspend the defendant’s license for sale of tobacco products for a period not to exceed six months for the second and subsequent violations. It shall be an affirmative defense that the purchaser or recipient of tobacco products who had not reached the age of 18 years presented to the accused proof of age which set forth information that would lead a reasonable person to believe that such individual was 18 years of age or older. The person in charge of the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine only if the retail licensee has received written notice of the above provisions from the Department of Safety and Homeland Security. The person in charge of the establishment where the alleged violation occurred shall have an affirmative defense if such person or entity can establish that, prior to the date of the violation, they had adopted and enforced a written policy against selling tobacco products to persons under 18 years of age; had informed its employees of the applicable laws regarding the sale of tobacco products to persons under 18 years of age; required employees to sign a form indicating that they have been informed of and understand the written policy required herein; required employees to verify the age of tobacco product customers by means of photographic identification; and had established and enforced disciplinary sanctions for noncompliance. This affirmative defense is available only twice at one retail location during any 12-month period. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. Tit. 11 §§ 1116, 1121, 1122, 1123 and 1127 (1996).

Penalties to Minors

It shall be unlawful for any person who is not 18 or older to purchase tobacco products, to accept receipt of a sample, to exchange a coupon for a tobacco product, or to present or offer another person a purported proof of age which is false, fraudulent, or not actually his or her own proof of age, for the purpose of purchasing or receiving any tobacco product. Violators shall be fined $50 or ordered to perform 25 hours of community service for the first offense, $50 fine and 50 hours of community service for the second and all subsequent offenses within 12 months of prior offenses. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11, §§ 1124 & 1127 (1996).

Placement of Tobacco Products

It shall be unlawful for any person who owns, operates, or manages a business establishment where tobacco products are offered for sale over the counter at retail to maintain such products in any display accessible to customers that is not either within the line of sight of a cashier or other employee, or under the control of a cashier or other employee. This prohibition shall not apply to business establishments to which persons under the age of 18 are not admitted, unless accompanied by an adult, or to tobacco stores. “Within the line of sight” means visible to a cashier or other employee, whether directly or by means of mirrors or monitors, and “under the control” means within the reach of a cashier or other employee or protected by other security, surveillance or detection methods. Violators are subject to the same penalties as selling tobacco products to minors. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11 §§ 1119 and 1121 (1996).

Sign Posting

A person engaged in the sale or distribution of tobacco products shall post conspicuously at each point of purchase a notice stating that selling tobacco products to anyone under 18 is illegal, that the purchase of tobacco products by anyone under 18 is illegal, and that a violator is subject to fines. The notice shall also state that all persons selling tobacco products have the right to check the proof of age of any purchaser. The notice shall include a toll-free number to the Department of Safety and Homeland Security to report unlawful sales to minors. Owners who fail to post a notice shall be subject to a fine of $100. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11, §§ 1117 & 1127 (1996).

Other Provisions

Internet Sales: Puts restrictions on sales of tobacco products by mail, over the phone, or by the Internet by requiring prior to delivery a copy of government issued identification and a certification that this information is true and uses a delivery service that either limits delivery to that purchaser and requires the purchaser to sign personally to receive the delivery or requires a signature of an adult at the purchaser’s address to deliver the package. Reporting of delivery sales of tobacco products to the Department of Finance is required. Cigars and pipe tobacco are exempt from most of the above requirements. A first violation of this subchapter is a $1,000 fine or five times the retail value of any tobacco product involved, whichever is greater; a second and subsequent violation is a fine of $5,000 or five times the retail value of the cigarettes involved. Any person who knowingly violates any provision of this subchapter, or who knowingly and falsely submits a certification in another person’s name, shall, for each such offense, be fined $10,000 or five times the retail value of the cigarettes involved, whichever is greater, or imprisoned not more than five years, or both. Failure to collect or remit taxes in connection with a delivery sale is five times the retail value of any tobacco product involved in addition to any other penalty.

DEL. CODE ANN. Tit. 30, §§ 5361 to 5369 (2007).

Note: Some parts of this law may be affected by the U.S. Supreme Court decision in Rowe v. New Hampshire Motor Transport Association, decided February 20, 2008.

Restrictions on Distribution of Tobacco Product Samples or Sales of Single Cigarettes

Samples

It shall be unlawful for any person to distribute tobacco product samples or coupons for subsequent receipt of free or discounted tobacco products to another person under age 18. A person engaged in sampling shall have the right to demand proof of age from a prospective recipient of samples or of coupons for the redemption of tobacco products. Violators are subject to the same penalties as selling tobacco products to minors. In addition, both affirmative defenses listed under the “Penalties for Sales to Minors” category are available for a violation of this section. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11 §§ 1118, 1121, 1122, 1123 and 1127 (1996).

Single Cigarettes

No person shall distribute a tobacco product for commercial purposes unless the product is in a sealed package provided by the manufacturer with the required health warning and tax stamp. No person shall distribute any pack of cigarettes containing fewer than 20 cigarettes. Violators are subject to the same penalties as selling tobacco products to minors. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. Tit. 11, §§ 1120, 1121 and 1127 (1996).

Restrictions on Sale of Tobacco Products in Vending Machines

Placement

It shall be unlawful for any person to distribute or permit the distribution of tobacco products through the operation of a vending machine in a public place, except in a taproom, tobacco shop, or in premises in which a person who has not attained the age of 18 years is prohibited by law from entering. A tobacco vending machine must be operated a minimum of 25 feet from any entrance to the premises and must be directly visible to the owner or supervisor of the premises. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit 11, §§ 1119 & 1127 (1996).

Penalty

Violators are subject to the same penalties as selling tobacco products to minors. These provisions shall preempt and supersede any provisions of any municipal or county ordinance or regulation enacted after June 30, 1996.

DEL. CODE ANN. tit. 11, §§ 1121 & 1127 (1996).

Licensing Requirements

Requirements

No person shall engage in or conduct the business of manufacturing, purchasing, selling, consigning or distributing tobacco products in this state or acting as an affixing agent without having first obtained the appropriate license or licenses from the Department of Finance. Licenses are to be renewed annually. Selling tobacco products without a license is subject to a fine of $100 to $1,000 and/or imprisonment not more than 90 days.

DEL. CODE ANN. Tit. 30, §§ 5307, 5311& 5343 (1977).

Fee

$200 annually for each place of business for wholesalers, $5 annually for each place of business for retailers, $3 annually for each machine for vending machine operators.

DEL. CODE ANN. tit. 30 § 5308 (1977).

License Suspension for Sales to Minors

By court order, the Department of Finance may suspend the license for the sale of tobacco products for a period not to exceed six months for the second and subsequent violations of applicable youth access laws.

DEL. CODE ANN. tit. 11 § 1121 (1996).

Advertising and Promotion

No person, firm, corporation, partnership or other organization shall advertise any tobacco products within 200 feet of any public or private school, excluding institutions of higher education. This section shall not apply to advertisements inside of a commercial establishment, except outward-facing advertisements placed in windows. This section shall not be construed to prohibit the display of any message or advertisement opposing the use of tobacco products. Any message or advertisement opposing the use of tobacco products that is placed within 200 feet of a school may not contain the brand name of any tobacco product or the name of any tobacco company. This section shall not be construed to prohibit an advertisement stating that a commercial establishment sells tobacco products, provided that the advertisement is on the premises or property of the commercial establishment and does not identify any tobacco product brand or any tobacco product manufacturer by name. Whoever is found to be in violation of this section by the Superior Court shall be fined up to $1,000 for the first offense and up to $5,000 for each subsequent offense.

DEL. CODE ANN. tit. 6, § 2507 (2000).

Note: Enforcement of the above law may be affected by the U.S. Supreme Court decision in Lorillard Tobacco Company v. Reilly, decided in 2001.

Tobacco Control Appropriations

Delaware appropriated $10,665,600 for tobacco prevention and cessation programs in FY2009 (July 1, 2008 to June 30, 2009) from the state’s annual MSA payment. $10,680,300 was appropriated in FY2008.

FY2009 Annual Budget (S.B. 300) enacted and effective 7/1/08.

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