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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsNovember 2015

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16 DE Admin. Code 4452
On September 1, 2015 (Volume 19, Issue 3), DHSS published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Del.C. §10115. It requested that written materials and suggestions from the public concerning the proposed regulations be delivered to DHSS by October 9, 2015, or be presented at a public hearing on September 30, 2015, after which time the DHSS would review information, factual evidence and public comment to the said proposed regulations.
The American Cancer Society Cancer Action Network (ACS CAN) would like to provide the following testimony on the proposed regulations (16 DE Admin. Code, Section 4522) adding electronic smoking devices to the Clean Indoor Air Act. First as Delawareans we should all be proud that our Clean Indoor Air Act passed in 2003 was one of the first such laws in the country and to this day it remains one of the nation's most comprehensive in protecting citizens from the harms of secondhand smoke exposure. It is critical as a state we maintain our leadership role by making sure that our laws keep pace in language and in action to protect the health of our citizens.
ALA supports the proposed regulations DE Admin Code 16, 4452 Clean Indoor Air Act. At the same time, ALA remains concerned that the absence of a disclosure of the contents of the material used for smoking with e-cigarettes is a risk to individuals who are using the e-cigarette as a part of their cessation effort. Earlier research into the content of that material suggests it may contain high levels of nicotine with its highly addictive effect. With increasing adolescent utilization of e-cigarettes this is particularly concerning. When FDA actions in help consumers identify the content of the materials used to smoke e-cigarettes, the ALA encourages the DPH to review the appropriate restrictions on use of e-cigarettes beyond inclusion in the Clean Indoor Air Act.
These Regulations are adopted in accordance with authority vested in the Secretary, Department of Health and Social Services, by 16 Del.C. §2906(b). These Regulations establish standards for the enforcement of the Clean Indoor Air Act as it relates to most indoor enclosed areas to which the general public is invited or in which the general public is permitted. Regulations establishing standards for the enforcement of the Clean Indoor Air Act affecting employers, employees and the workplace are adopted by the Department of Labor.
These regulations shall be construed and applied to protect the nonsmoker from involuntary exposure to environmental tobacco smoke and emissions produced by electronic smoking devices in most enclosed indoor areas to which the public is invited or in which the general public is permitted. The purpose of the Clean Indoor Air Act is to preserve and improve the health, comfort and environment of the people of this State by limiting exposure to tobacco smoke and emissions produced by electronic smoking devices.
These regulations shall be effective November 27, 2002 December 1, 2015.
“Department” means the Delaware Health and Social Services (DHSS) as defined in Title 29 Del.C. §7901.
Electronic Smoking Device” means any product containing or delivering nicotine or any other similar substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen, or under any other product name or descriptor.
“Environmental Tobacco Smoke” (ETS), or "Secondhand Smoke" means the complex mixture formed from the escaping smoke of a burning tobacco product (termed as sidestream smoke) and smoke exhaled by the smoker. Exposure to ETS is also frequently referred to as "passive smoking" or "involuntary smoking."
“Enclosed Indoor Area” means an indoor area that is neither open nor partially enclosed except for normal means of access and egress through doors or passageways.
“Fraternal Benefit Society” means any incorporated society, order or supreme lodge, without capital stock, including one exempted under the provisions of 18 Del.C. §6237(a)(2) of this title, whether incorporated or not, conducted solely for the benefit of its members and their beneficiaries and not for profit, operated on a lodge system with ritualistic form of work, having a representative form of government and which provides benefits in accordance with this chapter, is hereby declared to be a fraternal benefit society.
“Private Club” means any club or organization that does not permit the general public to access its facilities or activities. Access is denied to anyone who does not agree or adhere to the rules of membership. In order to be considered a private club or organization for purposes of the Clean Indoor Air Act, the establishment must adhere to all of, but not limited to, the following criteria:
d. Advertises exclusively and only to its members, excluding membership drives.
e. Advises Advertises exclusively and only to its members, excluding membership drives.
“Private Social Function” means a function to which the public is neither invited or generally permitted access and which is held in separate indoor enclosed indoor area.
“Public Transportation of Children” means transportation which involves the transportation of children by a vehicle under the control of a daycare, school or other organizations.
“Secretary” means the Administrator of the Delaware Department of Health and Social Services (DHSS) of the State of Delaware, who shall hereafter in this document be referred to as: Secretary; The Secretary; or, Secretary, DHSS.
“Smoking” means the burning of a lighted cigarette, cigar, pipe or any other matter or substance that contains tobacco; or, the use of an electronic smoking device which creates an aerosol or vapor, or in any manner or in any form.
Vapor Establishment” means a business that: 1) generates at least 80% of its revenue from the sale of electronic smoking devices and substances for use within electronic smoking devices; and 2) does not share indoor common space with other businesses unless there are doors from the vapor establishment to the indoor common space that remain closed other than for ingress and egress.
“Volunteer Fire Company” means a fire, ambulance, or rescue company recognized as such by the Delaware State Fire Prevention Commission.
8.1 Except as is provided in section 3.1 of these regulations, and in order to reduce the levels of exposure to environmental tobacco smoke and emissions produced by electronic smoking devices, smoking shall not be permitted and no person shall smoke in any of the following areas:
8.1.1 Any enclosed indoor area, including, but not limited to, those listed in 16 Del.C. §2903, to which the general public is invited or in which the general public is permitted. This shall apply to any organization, business or establishment which caters to or offers goods or services or facilities to, or solicits patronage from the general public.
8.1.2 Government owned and/or operated means of mass transportation including buses, vans, trains, taxicabs and limousines.
8.2 No owner of any indoor enclosed area subject to 16 Del.C. Ch. 29 and/or person(s) responsible for the management of such area or employee thereof, shall permit or authorize smoking by any person(s) in areas not designated specifically for the smoking of tobacco products as permitted by section 3.1.
9.1.6 Any fund raising activity or function sponsored by a fraternal benefit society as defined by 18 Del.C. §6201; provided, however, that the fund raising activity or function takes place upon property owned or leased by said organization.
10.1.1 Owners, operators, managers or other person(s) having control of enclosed indoor areas subject to the regulations of 16 Del.C. Ch. 29 shall post signs which indicate “Warning: Smoking Permitted” prominently to indicate those locations where smoking is permitted pursuant to section 3.1 9.1. Failure to prominently post properly maintained signs with letters at least one (1) inch in height and in accord with the CLEAN INDOOR AIR ACT shall be a violation subject to administrative penalties as set forth in section 5.1 11.1 of the Clean Indoor Air Act Regulations.
11.2 Right to Administrative Hearing. Upon due notice that the Department intends to assess an administrative penalty, as indicated in 5.1 11.1, the entity may submit to the Division, within thirty (30) days of the date of such notice of intent, a written request for an administrative hearing.
Last Updated: December 31 1969 19:00:00.
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