333-015-0025
Oregon Indoor Clean Air Act: Authority and Purpose

(1) These rules are adopted pursuant to the authority granted to the Oregon Health Authority, Public Health Division, in ORS 433.835 through 433.875 and 433.990(5) concerning smoke-free places of employment and public places.

(2) The purpose of the Oregon Indoor Clean Air Act is to reduce the health hazard caused to persons by inhaling smoke from tobacco products or other inhalants.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 -433.875 & 433.990
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02
HD 10-1983, f. & ef. 7-1-83

333-015-0030
Oregon Indoor Clean Air Act: Definitions

For purposes of OAR chapter 333, division 15, the following definitions shall apply:

(1) "Accessibility ramp" means a ramp intended to provide access for people with disabilities to and from an entrance or exit.

(2) "Act" means the Oregon Indoor Clean Air Act as it appears in ORS 433.835 through 433.875, and 433.990(5).

(3) "Authority" means the Oregon Health Authority.

(4) "Certificate holder" means the individual or entity on record with the Oregon Health Authority as the owner of a certified cigar bar or smoke shop.

(5) "Cigar bar" means a business that:

(a) Has on-site sales of cigars as defined in ORS 323.500;

(b) Has a humidor on the premises;

(c) Allows the smoking of cigars on the premises but prohibits the smoking, aerosolizing or vaporizing of other inhalants on the premises;

(d) Has been issued and operates under a full on-premises sales license issued under ORS 471.175;

(e) Prohibits persons under 21 years of age from entering the premises and posts notice of the prohibition;

(f) Does not offer video lottery games as authorized under ORS 461.217;

(g) Has a maximum seating capacity of 40 persons;

(h) Has a ventilation system that exhausts smoke from the business, and is designed and terminated in accordance with the state building code standards for the occupancy classification in use; and

(i) Requires all employees to read and sign a form approved and published by the Public Health Division that explains the dangers of exposure to secondhand smoke.

(6) "Employer" means any entity or individual who engages an individual to perform work or services in a place of employment.

(7) "Enclosed area" has the meaning given that term in ORS 433.835.

(8) "Entity in charge of a public place" means any person or organization that has responsibility because of ownership, proprietorship, management, or oversight over a place that is open to the public. Entity in charge of a public place is used to refer only to a person or organization in charge that is not also an employer.

(9) "Entrance" means any point of ingress, including an accessibility ramp and stairs, to an enclosed area from a non-enclosed area.

(10) "Exit" means any point of egress, including an accessibility ramp and stairs, from an enclosed area to a non-enclosed area.

(11) "Gross revenue" means all receipts from the sale of product(s) less the amount of any rebates, refunds, or credits.

(12) "Humidor" means a storage container designed to allow controlled airflow and equipped with a device that maintains the internal humidity in the range of 68 percent to 75 percent and an internal temperature in the range of 68 degrees to 70 degrees Fahrenheit.

(13) "Inhalant" means nicotine, a cannabinoid or any other substance that:

(a) Is in a form that allows the nicotine, cannabinoid or substance to be delivered into a person’s respiratory system;

(b) Is inhaled for the purpose of delivering the nicotine, cannabinoid or other substance into a person’s respiratory system; and

(c)(A) Is not approved by, or emitted by a device approved by, the United States Food and Drug Administration for a therapeutic purpose; or

(B) If approved by, or emitted by a device approved by, the United States Food and Drug Administration for a therapeutic purpose, is not marketed and sold solely for that purpose.

(14)(a) "Inhalant delivery system" means:

(A) A device that can be used to deliver nicotine or cannabinoids in the form of a vapor or aerosol to a person inhaling from the device; or

(B) A component of a device described in this subsection or a substance in any form sold for the purpose of being vaporized or aerosolized by a device described in this subsection, whether the component or substance is sold separately or is not sold separately.

(b) Inhalant delivery system does not include:

(A) Any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose; and

(B) Tobacco products.

(15) "Local Public Health Authority" or "LPHA" means the county government, unless a health district has been formed under ORS 431.443, the county has contracted with a person or agency to act as the public health authority, or the county has relinquished its authority to the state.

(16) "Maximum seating capacity" means the total number of seats available to patrons, including, but not limited to, bar stools, seating at cocktail tables, seats at buddy-bar tables, banquette seating, dining seating, couch space, and floor pillows intended as seating; as well as the total number of patrons a business permits inside the business at the same time.

(17) "Noncommercial tobacco products" means unprocessed tobacco plants or tobacco by-products used for ceremonial or spiritual purposes by American Indians.

(18) "Place of employment" means an enclosed area under the control of a public or private employer, including work areas, employee lounges, vehicles that are operated in the course of an employer’s business and that are not operated exclusively by one employee, rest rooms, conference rooms, classrooms, cafeterias, hallways, meeting rooms, elevators and stairways. Place of employment does not include a private residence unless it is used as a child care facility as defined in ORS 329A.250 or a facility providing adult day care as defined in ORS 410.490.

(19) "Private residence" means a residence or part of a residence that is not operated as a place of business where clients or customers use the premises. A residence that is considered a place of employment or public place is subject to ORS 433.835 through 433.875 during its hours of operation. Only that part of a residence used as a place of business is subject to ORS 433.835 through 433.875.

(20) "Public Health Director" means the director of the Public Health Division of the Oregon Health Authority.

(21) "Public Health Division" means the Public Health Division of the Oregon Health Authority.

(22) "Public place" means an enclosed area open to the public.

(23) "Smoking instrument" means any cigar, cigarette, pipe, or other instrument used to smoke tobacco, cannabis or any other inhalant.

(24) "Smoke shop" means a business that is certified with the Oregon Health Authority as a smoke shop under ORS 433.847(2)(a), (b), or (c).

(25) "Smoke shop A" means a business certified by the Authority as a smoke shop under ORS 433.847(2)(a).

(26) "Smoke shop B" means a business certified by the Authority as a smoke shop under ORS 433.847(2)(b).

(27) "Smoke shop C" means a business certified by the Authority as a smoke shop under ORS 433.847(2)(c).

(28) "Stand-alone business" means a business that is not attached to, does not use or occupy the same space as, is not located within, and does not share a common entryway or area with another business, another place of employment, or residential property.

(29) "Tobacco Prevention and Education Program" means the Tobacco Prevention and Education Program in the Public Health Division of the Oregon Health Authority.

(30) "Tobacco products" means:

(a) Bidis, cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, cavendish, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cuttings and sweepings of tobacco and other forms of tobacco, prepared in a manner that makes the tobacco suitable for chewing or smoking in a pipe or otherwise, or for both chewing and smoking;

(b) Cigarettes as defined in ORS 323.010(1); or

(c) A device that:

(A) Can be used to deliver tobacco products to a person using the device; and

(B) Has not been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose.

(31) "These rules" means OAR 333-015-0025 to 333-015-0090.

(32) "Type A Certification" means a smoke shop certification issued under ORS 433.847(2)(a).

(33) "Type B Certification" means a smoke shop certification issued under ORS 433.847(2)(b).

(34) "Type C Certification" means a smoke shop certification issued under ORS 433.847(2)(c).

(35) "Wall" means any architectural partition, permanent or temporary, with a height and length greater than its thickness, used to divide or enclose an area or to support another structure. Walls include, but are not limited to, partitions constructed of plastic, mesh or other screening materials, slats, louvered blinds, fabric, or blankets, and partitions with latticing or other open frameworks.

(36) "10 feet" means 10 linear feet, measured in a straight line between the points in question.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 22-2017, amend filed 12/21/2017, effective 01/01/2018
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 11-2011, f. & cert. ef. 10-27-11
PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
PH 18-2008, f. 11-14-08, cert. ef. 1-1-09
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02
HD 10-1983, f. & ef. 7-1-83

333-015-0035
Oregon Indoor Clean Air Act: General Provision

(1) No person shall smoke, aerosolize or vaporize an inhalant or carry a lighted smoking instrument in a public place or place of employment except in those areas that are not required to be smoke, aerosol or vapor free under ORS 433.850(2) and OAR 333-015-0035(6) through (8).

(2) Employers shall provide for employees a place of employment that is free of all smoke, aerosols and vapors containing inhalants; and may not allow employees to smoke, aerosolize or vaporize inhalants at the place of employment, except in those areas listed in ORS 433.850(2) and in OAR 333-015-0035(5) through (8).

(3) In providing a smoke, aerosol, or vapor free place of employment, an employer must ensure that:

(a) No person smokes, aerosolizes or vaporizes an inhalant within a place of employment.

(b) No person smokes, aerosolizes or vaporizes an inhalant within 10 feet of the following parts of a place of employment:

(A) Entrances;

(B) Exits;

(C) Windows that open; and

(D) Ventilation intakes that serve an enclosed area.

(4) No person shall smoke, aerosolize or vaporize an inhalant or carry a lighted smoking instrument within 10 feet of the following parts of public places or places of employment:

(a) Entrances;

(b) Exits;

(c) Windows that open; and

(d) Ventilation intakes that serve an enclosed area.

(5) The owner or entity in charge of a hotel or motel may designate up to 25 percent of the sleeping rooms of the hotel or motel as rooms in which smoking, aerosolizing or vaporizing of inhalants is permitted.

(a) If the owner or entity in charge of a hotel or motel chooses to designate up to 25 percent of sleeping rooms as smoking, aerosolizing or vaporizing permitted, all smoking, aerosolizing or vaporizing rooms on the same floor must be contiguous. The status of the rooms may not be changed, except to add more non-smoking, non-aerosolizing or non-vaporizing rooms.

(b) The owner or entity in charge of a hotel or motel shall provide written notice to patrons upon check-in as to the smoking, aerosolizing or vaporizing status of the sleeping rooms.

(c) The owner or entity in charge of a hotel or motel shall post signs at each entrance and exit in accordance with OAR 333-015-0040, with the exception of at sleeping room entrances and exits. Signs shall notify all patrons that smoking, aerosolizing or vaporizing is limited to certain sleeping rooms.

(d) The owner or entity in charge of a hotel or motel shall provide written information to patrons upon check-in, describing how patrons may notify management of smoking, aerosolizing or vaporizing occurring in non-smoking, non-aerosolizing or non-vaporizing areas or rooms.

(e) Nothing in these rules shall prevent the owner or entity in charge of a hotel or motel from prohibiting smoking, aerosolizing or vaporizing on the entire premises.

(6) Smoking of noncommercial tobacco products for ceremonial purposes is permitted in spaces designated for traditional ceremonies in accordance with the American Indian Religious Freedom Act, 42 U.S.C. 1996.

(7) The following areas are not required to be smoke-free:

(a) Smoke shops that are certified by the Authority under these rules;

(b) Cigar bars if:

(A) The cigar bar generated on-site retail sales of cigars of at least $5,000 for the calendar year ending December 31, 2006; and

(B) The cigar bar has provided the Public Health Division with proper documentation as required by OAR 333-015-0066.

(c) Up to 25 percent of the sleeping rooms of a hotel or motel, as designated by the owner or entity in charge. The hotel or motel must comply with rules set forth in OAR 333-015-0035(5).

(8) The medical use of marijuana is permitted in the place of employment of a licensee of a professional licensing board as described in ORS 475B.919.

(9) Nothing in these rules shall prevent an employer in charge of a place of employment or an entity in charge of a public place from designating the entire place of employment or public place as smoke, aerosol or vapor free.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 2-2010, f. & cert. ef. 1-14-10
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02
HD 10-1983, f. & ef. 7-1-83

333-015-0040
Oregon Indoor Clean Air Act: Signs

(1) An employer or entity in charge, except in those places described in OAR 333-015-0035(5) through (8), must post signs prominently at each entrance and exit to the place of employment or public place.

(a) Signs must state that smoking, aerosolizing or vaporizing of inhalants is prohibited within 10 feet of entrances, exits, windows that open, and ventilation intakes that serve an enclosed area.

(b) Signs may be used without the words "within 10 feet" if the signs specify a restriction greater than 10 feet or designate the entire premises as smoke, aerosol and vapor free.

(2) Nothing in these rules shall prevent an employer or an entity in charge from increasing the amount of property where smoking, aerosolizing or vaporizing of inhalants is prohibited beyond the 10-foot requirement or from designating the entire premises as smoke, aerosol or vapor free.

(3) In addition to requirements under this rule, an owner or entity in charge of a hotel or motel shall comply with signage requirements as described in OAR 333-015-0035(5).

(4) An employer or entity in charge of tables or outdoor seating or dining areas within 10 feet of entrances, exits, windows that open, ventilation intakes that serve an enclosed area of a public place or place of employment, or any portion of an accessibility ramp shall clearly mark the tables or outdoor seating or dining areas as non-smoking, non-vaporizing and non-aerosolizing.

(5) In a cigar bar where smoking is allowed under OAR 333-015-0035(7), the employer or entity in charge shall post signs at each entrance and exit clearly stating that:

(a) Smoking is allowed on all or part of the premises;

(b) Smoking, aerosolizing or vaporizing of inhalants that are not cigars is prohibited; and

(c) Anyone under the age of 21 is prohibited from entering the premises.

(6) Smoke shops must post signs at each entrance and exit clearly stating that:

(a) Smoking is allowed on all or part of the premises;

(b) Anyone under the age of 21 is prohibited from entering the premises;

(c) It is unlawful to sell tobacco products or inhalant delivery systems to anyone under the age of 21;

(d) Cigarette smoking is prohibited on the premises, in a smoke shop where cigarette smoking is not allowed under these rules;

(e) Smoking, aerosolizing or vaporizing of inhalants that are not tobacco products is prohibited; and

(f) On-premises consumption of alcohol is prohibited.

(7) All signs used to describe whether smoking is prohibited or allowed in a place of employment or public place shall be placed at a height and location easily seen by a person entering the establishment and shall not be obscured in any way.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 2-2010, f. & cert. ef. 1-14-10
PH 18-2008, f. 11-14-08, cert. ef. 1-1-09
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02
HD 10-1983, f. & ef. 7-1-83

333-015-0045
Oregon Indoor Clean Air Act: Ashtrays

(1) Ashtrays and any receptacles intended to be used for or used for depositing cigarette or inhalant delivery system debris are prohibited within 10 feet of entrances, exits, windows that open, ventilation intakes that serve an enclosed area of a public place or place of employment, and any portion of an accessibility ramp.

(2) Except for those areas described in OAR 333-015-0035(7), ashtrays and any receptacles intended to be used for or used for smoking or depositing cigarette or inhalant delivery system debris are prohibited inside public places and places of employment.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02
HD 10-1983, f. & ef. 7-1-83

333-015-0056
Oregon Indoor Clean Air Act: Smoke Shop Application for Certification

(1) A business must be certified by the Authority prior to allowing smoking on the premises.

(2) To obtain certification as a smoke shop, a business must agree to allow the Authority or LPHA to make unannounced inspections of the business to determine compliance with the Act.

(3) Smoke shop certification is only valid for the business location authorized by the Authority.

(4) Application Criteria:

(a) Type A Certification. A business may apply for smoke shop Type A Certification by submitting the following to the Authority:

(A) A complete application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

(B) A notarized, sworn statement attesting that the business:

(i) Is primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, and derives at least 75 percent of its gross revenue from such sales;

(ii) Prohibits persons under 21 years of age from entering the premises;

(iii) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(iv) Does not sell or offer food or beverages, including alcoholic beverages, for on-premises consumption;

(v) Does not allow on-premises consumption of alcoholic beverages;

(vi) Has a maximum seating capacity of no more than four persons;

(vii) Allows the smoking of tobacco product samples only for the purpose of making retail purchase decisions, in a manner that complies with ORS 180.486 and 431A.175; and

(viii) Does not allow the smoking, aerosolizing or vaporizing of inhalants that are not tobacco products.

(C) Documentation of the business’s sales, broken down by category of product;

(D) Evidence, such as photographs, of signs required under OAR 333-015-0040(5).

(E) A building map and photographs of the premises demonstrating that the business is a stand-alone business;

(F) A site map and photographs of the premises that denotes maximum seating capacity and includes a detailed seating chart; and

(G) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

(b) Type B Certification. A business existing on December 31, 2008, may apply for smoke shop Type B Certification by submitting the following documentation to the Authority:

(A) A complete application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

(B) Proof of registration with the Oregon Secretary of State, Corporation Division, since 2008 or, if not required to be registered, tax documentation proving that the business has been in operation since 2008;

(C) A notarized, sworn statement attesting that both currently and on December 31, 2008, the business:

(i) Was primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, and derived at least 75 percent of its gross revenue from such sales;

(ii) Prohibited persons under 21 years of age from entering the premises;

(iii) Did not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(iv) Did not sell or offer food or beverages, including alcoholic beverages for on-premises consumption; and

(v) Did not allow on-premises consumption of alcoholic beverages.

(D) Documentation of the business’s sales, broken down by category of product;

(E) Either of the following:

(i) Documentation, such as a building map or photographs, demonstrating that on December 31, 2008, the business was a stand-alone business with no other businesses or residential property attached; or

(ii) Documentation demonstrating that on December 31, 2008, it had a ventilation system that exhausted smoke from the business and was designed and terminated in accordance with the state building code standards for the occupancy classification in use. Such documentation must include either:

(I) A certificate of occupancy that was current on December 31, 2008, and official documentation from the building authority with jurisdiction of the occupancy classification for which the business was approved; or

(II) If the documentation described in subparagraph (4)(b)(E)(ii)(I) of this rule is unavailable, a current certificate of occupancy, proof that the business’s ventilation system was installed in 2008 or earlier, and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;

(F) Either of the following:

(i) Documentation, such as a building map or photographs, demonstrating that the business currently is a stand-alone business with no other businesses or residential property attached; or

(ii) A current certificate of occupancy and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;

(G) Evidence, such as photographs, of signs required under OAR 333-015-0040(5).

(H) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

(c) Type C Certification. A business certified by the Authority on or before December 31, 2012 as a smoke shop under ORS 433.835, as in effect immediately before June 30, 2011, may apply for smoke shop Type C Certification by submitting the following documentation to the Authority:

(A) A complete application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

(B) A notarized, sworn statement attesting that the business:

(i) Was certified by the Authority on or before December 31, 2012 as a smoke shop under ORS 433.835, as in effect immediately before June 30, 2011;

(ii) Allows smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes;

(iii) Is primarily engaged in the sale of tobacco products and smoking instruments, with at least 75 percent of the gross revenues of the business resulting from such sales;

(iv) Does not:

(I) Sell or offer alcoholic beverages for on-premises consumption;

(II) Allow on-premises consumption of alcoholic beverages; or

(III) Offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises.

(v) Prohibits persons under 21 years of age from entering the premises; and

(vi) Is a stand-alone business with no other businesses or residential property attached to the premises.

(C) Documentation of the business’s sales, broken down by category of product, including cigarette sales

(D) Evidence, such as photographs, of signs required under OAR 333-015-0040(5); and

(E) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 17-2019, renumbered from 333-015-0068, filed 09/26/2019, effective 09/26/2019
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09

333-015-0057
Oregon Indoor Clean Air Act: Smoke Shop Application Review

(1) The Authority may reject an application if the application is incomplete. An application may be considered incomplete if the application form is incomplete or any information or documents required under these rules is not submitted.

(2) Type A Certification Applications.

(a) The Authority shall grant a smoke shop Type A Certification if the applicant:

(A) Submits all of the documentation required under OAR 333-015-0056(4)(a), including the notarized sworn statement, and any other documentation required by the Authority;

(B) Is primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, and derives at least 75 percent of its gross revenue from such sales;

(C) Prohibits persons under 21 years of age from entering the premises;

(D) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(E) Does not sell or offer food or beverages, including alcoholic beverages, for on-premises consumption;

(F) Does not allow on-premises consumption of alcoholic beverages;

(G) Has a maximum seating capacity of no more than four persons;

(H) Allows the smoking of tobacco product samples only for the purpose of making retail purchase decisions, in a manner that complies with ORS 180.486 and 431A.175;

(I) Prohibits smoking, aerosolizing or vaporizing of inhalants that are not tobacco products;

(J) Posts signs required under OAR 333-015-0040(5); and

(K) The proposed premises is a stand-alone business with no other businesses or residential property attached to the premises.
(b) The Authority shall deny an application for Type A Certification if it fails to satisfy any requirement in subsection (2)(a) of this rule.

(3) Type B Certification Applications.

(a) The Authority shall grant a smoke shop Type B Certification if the applicant:

(A) Submits all of the documentation required under subsection OAR 333-015-0056(4)(b), including the notarized sworn statement and completed application form, and any other documentation required by the Authority;

(B) The applicant is a business that has operated since 2008;

(C) Both currently and on December 31, 2008, the business:

(i) Was primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use, and derived at least 75 percent of its gross revenue from such sales;

(ii) Prohibited persons under 21 years of age from entering the premises;

(iii) Did not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises; and

(iv) Did not sell or offer food or beverages, including alcoholic beverages, for on-premises consumption.

(v) Did not allow on-premises consumption of alcoholic beverages.

(D) Either of the following:

(i) On December 31, 2008, the applicant business was a stand-alone business with no other businesses or residential property attached; or

(ii) On December 31, 2008, the applicant business had a ventilation system that exhausted smoke from the business and was designed and terminated in accordance with the state building code standards for the occupancy classification in use.

(E) Either of the following:

(i) The applicant business presently is a stand-alone business with no other businesses or residential property attached; or

(ii) Has a ventilation system that exhausts smoke from the business and is designed and terminated in accordance with the state building code standards for the occupancy classification in use or the applicant business is currently approved as a smoking lounge;

(F) Posted signs required under OAR 333-015-0040(5).

(b) The Authority shall deny an application for Type B Certification if it fails to satisfy any requirement in subsection (3)(a) of this rule.

(4) Type C Certification Applications.

(a) The Authority shall grant a smoke shop Type C Certification if the applicant:

(A) Submits all of the documentation required under OAR 333-015-0056(4)(c), including the notarized sworn statement, and any other documentation required by the Authority;

(B) The applicant business was certified by the Authority on or before December 31, 2012 as a smoke shop under ORS 433.835, as in effect immediately before June 30, 2011;

(C) The business is primarily engaged in the sale of tobacco products and smoking instruments, with at least 75 percent of the gross revenues of the business resulting from such sales;

(D) The applicant business allows the smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes;

(E) Does not:

(i) Sell or offer alcoholic beverages for on-premises consumption;

(ii) Allow on-premises consumption of alcoholic beverages; and

(iii) Offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises.

(F) Prohibits persons under 21 years of age from entering the premises.

(G) Is a stand-alone business with no other business or residential property attached to the premises.

(H) Posted signs required under OAR 333-015-0040(5).

(b) The Authority shall deny an application for Type C Certification if it fails to satisfy any requirement in subsection (4)(a) of this rule.

(5) The Authority may refuse to issue or renew an application for smoke shop certification and prohibit an applicant from reapplying for up to two years if the applicant provides information that is false or deliberately misleading.

(6) Subject to ORS chapter 183, the Authority may refuse to issue or renew a certification to a smoke shop for a violation of any provision of ORS 433.835 to 433.875 or a violation of any rule adopted under ORS 433.835 to 433.875.

(7) If the Authority revokes the certification or denies the renewal of a smoke shop B or smoke shop C certification, the Authority may not issue a new smoke shop B or smoke shop C certification to the smoke shop.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, adopt filed 11/18/2019, effective 01/01/2020

333-015-0058
Oregon Indoor Clean Air Act: Smoke Shop Ongoing Requirements for Certification

(1) A smoke shop must meet the renewal criteria described in OAR 333-015-0059 at all times. The Authority may revoke certification if the smoke shop fails to meet the renewal criteria.

(2) Each year, a smoke shop must submit to the Authority documentation of the smoke shop’s gross revenue for the past calendar year demonstrating that at least 75 percent of the smoke shop’s gross revenue for the past calendar year is derived from the sale of tobacco products or smoking instruments. The documentation must be received by the Authority by April 30. The documentation submitted must include:

(a) A notarized, sworn statement on an Authority-provided form (available online or by calling the Tobacco Prevention and Education Program) attesting:

(A) At least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments; and

(B) To the amount of sales in each product category, including cigarette sales for smoke shops B and smoke shops C that permit cigarette smoking on the premises.

(b) An aggregated sales report for the past calendar year identifying the amount of sales in each product category, including cigarette sales for smoke shops B and smoke shops C that permit cigarette smoking on the premises.

(3) A smoke shop must maintain documentation on file at the certified location that demonstrates that at least 75 percent of the smoke shop’s gross revenue for the past three calendar years is derived from the sale of tobacco products or smoking instruments. The Authority may inspect a smoke shop’s financial records to determine compliance with the Act and these rules. The smoke shop shall make such documentation available to the Authority upon request or during an inspection.

(4) A smoke shop must maintain current contact information with the Authority. If the Authority is unable, despite a good-faith effort, to contact the smoke shop because the smoke shop’s mailing address, phone number, or other contact information are incorrect, then the Authority may suspend the smoke shop’s certification until correct contact information is provided.

(5) Smoke shops B and smoke shops C may not allow the smoking of cigarettes unless at least 75 percent of its gross revenue is derived from the sale of cigarettes.

(6) A smoke shop that ceases to operate at the certified location fails to meet ongoing certification requirements and certification shall be revoked. A smoke shop must notify the Authority immediately if the smoke shop will cease operating or is not operating.

(7) A smoke shop may place a hold on its certification for up to six months by submitting a hold notification on a form provided by the Authority (available online or by calling the Tobacco Prevention and Education Program) to the Authority.

(a) The hold is effective only when receipt is confirmed and the hold is approved by the Authority.

(b) A smoke shop may only place a hold on its certification when it is remodeling its current certified location or it is transferring location.

(c) The Authority shall not act to revoke a certificate under section (6) of this rule during a valid hold on the certification. If the smoke shop fails to begin operating at the end of the hold period, the Authority may revoke the certification under section (6) of this rule.

(d) The smoke shop may apply for one 6-month extension that the Authority may grant in its discretion.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, adopt filed 11/18/2019, effective 01/01/2020

333-015-0059
Oregon Indoor Clean Air Act: Smoke Shop Renewal of Certification

(1) Smoke shop Type B Certifications and Type C Certifications are effective for five years. To apply to renew a certification, the smoke shop must submit and the Authority must receive a complete application including any supporting documentation at least 60 days prior to the expiration of its current certification.

(2) To renew certification, smoke shop B must submit the following to the Authority:

(a) A complete renewal application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

(b) A notarized, sworn statement attesting that the smoke shop currently:

(A) Is primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use and derived at least 75 percent of its gross revenue from such sales.

(B) Prohibits persons under 21 years of age from entering the premises;

(C) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(D) Does not sell or offer food or beverages, including alcoholic beverages, for on-premises consumption.

(E) Does not allow on-premises consumption of alcoholic beverages;

(F) Allows the smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes.

(c) Documentation of the business’s sales, broken down by category of product;

(d) Either of the following:

(A) Documentation, such as a building map or photographs, demonstrating that the business presently is a stand-alone business with no other businesses or residential property attached; or

(B) Documentation that the business has a ventilation system that exhausts smoke from the business and is designed and terminated in accordance with the state building code standards for the occupancy classification in use or a current certificate of occupancy and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;

(e) Evidence, such as photographs, of signs required under OAR 333-015-0040.

(f) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

(3) The Authority shall renew a Type B Certification if the applicant:

(a) Submits all of the information and documentation required by section (2) of this rule;

(b) Is primarily engaged in the sale of tobacco products and smoking instruments intended for off-premises consumption or use and derived at least 75 percent of its gross revenue from such sales;

(c) Prohibits persons under 21 years of age from entering the premises;

(d) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(e) Does not sell or offer food or beverages, including alcoholic beverages, for on-premises consumption.

(f) Does not allow on-premises consumption of alcoholic beverages;

(g) Provides evidence of either of the following:

(A) The business presently is a stand-alone business with no other businesses or residential property attached; or

(B) The business has a ventilation system that exhausts smoke from the business and is designed and terminated in accordance with the state building code standards for the occupancy classification in use or a current certificate of occupancy and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;

(h) Posts signs required under OAR 333-015-0040; and

(i) Allows the smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes.

(4) To renew certification, a smoke shop C must submit the following to the Authority at least 60 days prior to the expiration of its current certification:

(a) A complete renewal application form prescribed by the Authority (available online or by calling the Tobacco Prevention and Education Program).

(b) A notarized, sworn statement attesting that the smoke shop currently:

(A) Is primarily engaged in the sale of tobacco products and smoking instruments, and derived at least 75 percent of its gross revenue from such sales;

(B) Prohibits persons under 21 years of age from entering the premises;

(C) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(D) Does not sell or offer alcoholic beverages for on-premises consumption;

(E) Does not allow on-premises consumption of alcoholic beverages; and

(F) Allows the smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes.

(c) Documentation of the business’s sales, broken down by category of product, including cigarette sales;

(d) Evidence, such as photographs, of signs required under OAR 333-015-0040;

(e) Documentation, such as a building map or photographs, demonstrating that the business presently is a stand-alone business with no other businesses or residential property attached; and

(f) Any other documentation, as specified in the application form, necessary to demonstrate compliance with the Act or these rules.

(5) The Authority shall renew a smoke shop C if the business:

(a) Submits all of the information and documentation required by section (4) of this rule;

(b) Is primarily engaged in the sale of tobacco products and smoking instruments, and derived at least 75 percent of its gross revenue from such sales;

(c) Prohibits persons under 21 years of age from entering the premises;

(d) Does not offer video lottery games as authorized under ORS 461.217, social gaming, or betting on the premises;

(e) Does not sell or offer alcoholic beverages for on-premises consumption;

(f) Does not allow on-premises consumption of alcoholic beverages;

(g) Posts signs required under OAR 333-015-0040;

(h) Presently is a stand-alone business with no other businesses or residential property attached to the premises; and

(i) Allows the smoking of cigarettes only if at least 75 percent of the gross revenues of the business results from the sale of cigarettes.

(6) The Authority may revoke or refuse to renew a certification if a smoke shop:

(a) Fails to meet certification renewal requirements described in this rule at any time;

(b) Fails to submit required documentation in accordance with OAR 333-015-0058;

(c) Fails to comply with or violates any requirement or obligation in the Act or these rules; or

(d) Ceases to operate.

(7) If the Authority revokes or refuses to renew a Type B or Type C Certification, the Authority may not issue a new Type B or Type C Certification to the smoke shop.

(8) The Authority may deny an application for smoke shop certification or revoke a smoke shop certification and prohibit an applicant from reapplying for up to two years if the applicant:

(a) Provides information that is false or deliberately misleading; or

(b) Violates the Act or these rules.

(9) The Authority may reject a renewal application that is:

(a) Not timely submitted. The application must be received by the Authority at least 60 days prior to the expiration of the current certification.

(b) Incomplete. An application may be considered incomplete if the application form is incomplete or any information or documents required under these rules is not submitted.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, adopt filed 11/18/2019, effective 01/01/2020

333-015-0061
Oregon Indoor Clean Air Act: Transfer of Ownership or Location

(1) A smoke shop B or smoke shop C may apply to transfer ownership. Smoking is not permitted on the premises of a smoke shop operating under different ownership until the Authority issues an updated certification to the new owner in accordance with this rule.

(2) To apply to transfer to a new owner, the smoke shop B or smoke shop C must submit the following documentation to the Authority:

(a) A completed application for transfer of ownership on a form provided by the Authority (available online or by calling the Tobacco Prevention and Education Program) identifying the new proposed owner of the smoke shop;

(b) Registration with the Oregon Secretary of State, Corporation Division where applicable; and

(c) A notarized, sworn statement attesting that the business will continue to meet the certification renewal requirements described in OAR 333-015-0059 under the new ownership.

(3) The Authority shall recognize a transfer of ownership of a smoke shop B or smoke shop C and issue an updated certification if the applicant complies with section (2).

(4) The Authority may deny a transfer of ownership of a smoke shop B or smoke shop C if:

(a) The applicant fails to satisfy section (2) of this rule;

(b) The proposed owner has a history of noncompliance with the Act or these rules; or

(c) The applicant provides information that is false or deliberately misleading.

(4) Within 120 days of the Authority issuing an updated certification under section (3) of this rule, the new owner must submit to the Authority updated financial documentation required in OAR 333-015-0058 for the first 90 days of operation under the updated certification, including but not limited to a sales report demonstrating that at least 75 percent of the smoke shop’s gross revenue during the first 90 days of operation was derived from the sale of tobacco products or smoking instruments.

(5) A smoke shop B or smoke shop C may apply to transfer location. Smoking is not permitted on the premises of a smoke shop operating at a new location until the Authority issues an updated certification recognizing the new location in accordance with this rule.

(a) To apply to transfer location, the smoke shop must submit the following documentation to the Authority:

(A) A completed application for transfer of location on a form provided by the Authority (available online or by calling the Tobacco Prevention and Education Program);

(B)(i) A copy of the deed or rental lease for the new location, indicating that the business does not occupy more than 3,500 square feet; or

(ii) If the new location occupies more than 3,500 square feet, documentation demonstrating that the location where the shop was originally certified occupied more than 3,500 square feet and the square footage of the new location is no more than 110 percent of the square footage of the original certification location;

(C) A notarized, sworn statement attesting that:

(i) The smoke shop will cease to operate in the old location; and

(ii) The smoke shop, as operated in the new location meets the certification renewal requirements described in OAR 333-015-0059 as applicable;

(b) The Authority shall recognize a transfer of location of a smoke shop B or smoke shop C and issue an updated certification if:

(A) The smoke shop submits all of the documentation required by subsection (5)(a) of this rule to the Authority;

(B)(i) The new location does not occupy more than 3,500 square feet; or

(ii) The new location is no more than 110 percent of the square footage of the original smoke shop location if the new location occupies more than 3,500 square feet;

(C) The smoke shop ceases to operate in the original location; and

(D) The smoke shop, as operated in the new location meets the certification renewal requirements described in OAR 333-015-0059 as applicable.

(6) The Authority may deny a transfer of location of a smoke shop B or smoke shop C if the applicant:

(a) Fails to satisfy section (5) of this rule; or

(b) Provides information that is false or deliberately misleading.

(7) A smoke shop A may not apply to transfer and must submit a new application under OAR 333-015-0056 to operate a new location or under new ownership.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, adopt filed 11/18/2019, effective 01/01/2020

333-015-0062
Oregon Indoor Clean Air Act: Vehicles

(1) An employer may allow smoking in vehicles only when the vehicle is permanently assigned to a single employee and no other employees, clients, or members of the public are required or compelled to operate or otherwise occupy the vehicle.

(2) Nothing in these rules shall prevent an employer from designating all vehicles as smokefree.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09

333-015-0064
Oregon Indoor Clean Air Act: Outdoor Smoking Areas

(1) The owner or entity in charge of a place of business may establish an outdoor smoking, aerosolizing or vaporizing of inhalants area if that area is:

(a) Not within 10 feet of entrances, exits, windows that open, ventilation intakes that serve an enclosed area of any public place or place of employment, or any portion of an accessibility ramp;

(b) Not, at any time, an enclosed area; and

(c) In compliance with all other state, city, and county codes.

(2) Nothing in these rules shall prevent an employer from increasing the amount of property where smoking, aerosolizing or vaporizing is prohibited beyond the 10-foot requirement or from designating the entire premises as smokefree.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 22-2017, amend filed 12/21/2017, effective 01/01/2018
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09

333-015-0066
Oregon Indoor Clean Air Act: Cigar Bars

(1) A business must apply to the Authority for certification before allowing cigar smoking on its premises.

(2) A business must apply for certification on a form prescribed by the Authority and include the following information and documentation:

(a) A copy of the business’s full on-premises liquor sales license issued by the Oregon Liquor Control Commission under ORS 471.175;

(b) A site map of the premises that denotes maximum seating capacity and includes a detailed seating chart;

(c) A copy of the business’s certificate of occupancy and official documentation from the building authority with jurisdiction that the business was approved as a smoking lounge;

(d) Using the form provided by the Authority, proof that all employees have read and signed a document explaining the dangers of exposure to secondhand smoke (this form is available online or by calling the Tobacco Prevention and Education Program); and

(e) Documentation demonstrating to the satisfaction of the Public Health Director that the cigar bar generated on-site retail sales of cigars of at least $5,000 in the calendar year 2006.

(3) Application Review:

(a) The Authority shall review application materials within 30 days of receipt and determine whether the application is complete.

(b) Within 10 days of declaring an application complete, the Authority shall deny or grant the application. The Authority shall grant a business certification if, upon review of the application materials, the Authority finds that sufficient documentation has been provided to demonstrate compliance with section (2) of this rule. In lieu of denying an application, the Authority may request additional information from the applicant to determine compliance with section (2) of this rule.

(c) The Authority may deny an application for cigar bar certification if the Authority issued a civil penalty against an applicant for any violation of the Act or these rules within 12 months prior to application.

(d) The Authority may deny an application for cigar bar certification or revoke a cigar bar certification and prohibit an applicant from reapplying for up to two years if the applicant or cigar bar:

(A) Provides information that is false or deliberately misleading; or

(B) Violates the Act or these rules.

(4) Ongoing Requirements for Certification:

(a) If a cigar bar was certified before February 1, 2012, and has not provided the information or documentation required under section (2) of this rule, the cigar bar must furnish the missing information or documentation upon request by the Authority to remain certified.

(b) A certified cigar bar must meet the definition of a cigar bar, as defined in ORS 433.835(1) and OAR 333-015-0030(5), at all times. The Authority may revoke certification if the business no longer meets the definition of a cigar bar.

(c) A cigar bar must submit a completed form, as described in subsection (2)(d) of this rule, to the Authority by December 31 of each calendar year for every new employee hired during that year.

(5) Cigar bar certification is only valid for the business location authorized by the Authority.

(6) Certification may be revoked if a cigar bar ceases operation. The certificate holder must notify the Authority that the cigar bar is no longer in operation within 30 days of ceasing to operate.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09

333-015-0070
Oregon Indoor Clean Air Act: Oregon Health Authority Responsibilities

(1) The Authority shall maintain a system for receiving complaints, providing educational materials, conducting site visits, and issuing notices of violation.

(2) The Authority shall:

(a) Upon request and satisfactory review, certify cigar bars and smoke shops in accordance with these rules; and

(b) Receive, respond to, and investigate complaints of non-compliance with the Act and these rules.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02

333-015-0075
Oregon Indoor Clean Air Act: Complaint Response

The Authority or the LPHA shall respond to complaints as follows:

(1) Initial Complaint:

(a) The Authority or the LPHA shall assess whether the site in question is required to be smoke, aerosol or vapor free under the provisions of ORS 433.835 through 433.850.

(b) If the Authority or the LPHA determines that the place of employment, or public place (or any portion thereof), is required to be smoke, aerosol or vapor free, the Authority or the LPHA shall send a letter ("initial response letter") to the place of employment, or public place named in the complaint within 10 business days after receipt of the complaint of violation. The letter shall contain notification that the employer, or public place was reported as being in violation of the Act or these rules, and information on whom to contact for further information and assistance with compliance.

(2) Second or Subsequent Complaint: If the Authority or the LPHA receives a second or subsequent complaint about the site more than five business days after the "initial response letter" was sent, a representative of the Authority or the LPHA shall make an unannounced site visit within 30 days of complaint receipt to determine whether the employer or public place is in violation of the Act or these rules.

(3) If a complainant has supplied their name and contact information, the Authority or the LPHA shall send a form letter to the complainant, notifying the complainant that the complaint has been received and is being investigated or that the place of employment or public place is not required to be smoke-free under ORS 433.835 through 433.850.

(4) Remediation Plan:

(a) If, after a site visit, the Authority or LPHA finds violations of the ICAA an employer or entity in charge of a public place, certified smoke shop or cigar bar, or his or her designee, must cooperate with the Authority or LPHA to develop a remediation plan. All remediation plans must be completed within 15 days of the site visit.

(b) In special circumstances, an employer or entity in charge may request in writing additional time to complete the remediation plan. An extension may be granted only by the Public Health Director or designee.

(5) Post-remediation plan follow-up site visit:

(a) The Authority or the LPHA shall make a follow-up visit within 30 days of the remediation plan completion due date to confirm completion.

(b) If a violation of the ICAA is found during the follow-up site visit the Authority may impose civil penalties.

(6) Post-remediation plan complaints:

(a) If an additional complaint is received within three years of the date the remediation plan was entered into, the Authority or the LPHA shall make an unannounced site visit within 21 days of complaint receipt. The Authority may impose civil penalties for any violations.

(b) If an additional complaint is received more than three years of the date the remediation plan was created and there is no evidence of other violations in that three-year period, the Authority or the LPHA shall make an unannounced site visit and must follow the procedures in sections (2) and (4) of this rule.

(7) Cooperation with Inspection:

(a) An employer or entity in charge of a public place must permit and cooperate with the Authority or the LPHA inspection of the place of employment or public place (or any portion thereof), to evaluate compliance with the Act and these rules.

(b) It is a violation to fail to permit or cooperate with Authority or LPHA inspection.

(c) For the purposes of this rule, "fail to cooperate" includes, but is not limited to interference, a threat, or harassment that delays, impairs or obstructs the Authority or the LPHA from carrying out its inspection or other duties under the Act and these rules.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 2-2010, f. & cert. ef. 1-14-10
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02

333-015-0078
Oregon Indoor Clean Air Act: Violations

(1) Violations of the ICAA include but are not limited to the following:

(a) Smoking, aerosolizing, vaporizing or carrying a lighted smoking instrument or inhalant delivery systems in an area where smoking, aerosolizing, or vaporizing of inhalants is prohibited.

(b) Cigar or cigarette butts in an area where smoking is prohibited.

(c) Ashtrays or any receptacles intended for use or used for depositing cigarette or inhalant delivery system debris in an area where smoking is prohibited.

(d) Absence or insufficiency of signs that are required under these rules.

(e) Operating a cigar bar without valid certification from the Authority.

(f) Operating as a smoke shop without valid certification from the Authority.

(g) Smoking of non-cigar tobacco products in a cigar bar.

(h) Smoking, aerosolizing or vaporizing instruments intended for use in an area where smoking, aerosolizing or vaporizing of inhalants is prohibited.

(i) Non-compliance with any of the cigar bar or smoke shop certification requirements set forth in the Act or these rules.

(j) Smoking, aerosolizing or vaporizing of inhalants or carrying a lighted smoking instrument or inhalant delivery system within 10 feet of entrances, exits, windows that open, ventilation intakes that serve an enclosed area of any public place or place of employment, or any portion of an accessibility ramp.

(k) Ashtrays or any receptacles intended to be used or used for depositing cigarette or inhalant delivery system debris within 10 feet of entrances, exits, windows that open, ventilation intakes that serve an enclosed area of any public place or place of employment, or any portion of an accessibility ramp.

(l) Tables or outdoor seating or dining areas not clearly marked as non-smoking, non-aerosolizing and non-vaporizing, within 10 feet of entrances, exits, windows that open, ventilation intakes that serve an enclosed area of any public place or place of employment, or any portion of an accessibility ramp.

(m) Failure of an employer or entity in charge to cooperate in developing a remediation plan.

(n) Failure of an employer, entity in charge of a public place, a cigar bar or smoke shop to:

(i) Permit or cooperate with the Authority or the LPHA inspection of all or any part of the premises;

(ii) Cooperate with the Authority or the LPHA to develop a remediation plan.

(o) Failure of an employer to provide a smoke, aerosol, or vapor free place of employment by permitting smoking, aerosolizing or vaporizing of inhalants within 10 feet of the entrances, exits, windows that open, and ventilation intakes that serve an enclosed area.

(2) Notice of Violation:

(a) If the Authority has evidence of violations of the ICAA or these rules the Authority may impose civil penalties against an individual, an employer, an entity in charge of a public place, a cigar bar or smoke shop, in accordance with OAR 333-015-0085.

(b) A Notice of Violation must be issued in compliance with the notice and civil penalty provision in ORS chapter 183 and OAR 333-015-0085.

(c) Payment of civil penalties shall be made to the Public Health Director and credited to the Tobacco Use Reduction Account, as required by ORS 433.855(1)(c).

(3) In addition to imposing civil penalties under OAR 333-015-0085, the Authority may initiate further legal action against an employer, entity in charge of a public place, a cigar bar or smoke shop including, but not limited to, requesting a court to enjoin further violations of the ICAA or these rules.

Statutory/Other Authority: ORS 433.855, ORS 431.155 & ORS 433.860
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14

333-015-0080
Oregon Indoor Clean Air Act: Public Places which Oregon Health Authority, Public Health Authority Regularly Inspects

If, in public places that the Authority regularly inspects and that are required to be smokefree under these rules, the Authority’s inspector, during a regular inspection, notes a possible violation of ORS 433.835 through 433.875 or these rules, the inspector shall report the violation to the Authority.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02

333-015-0082
Oregon Indoor Clean Air Act: Public Places Regulated by Other State Agencies or Local Governments

If, during the course of an inspection of a public place that is regulated by the State of Oregon or a local government, an inspector notes a possible violation of ORS 433.835 through 433.875 or these rules, the inspector may report the possible violation to the Authority.

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09

333-015-0085
Oregon Indoor Clean Air Act: Penalties

The Authority may impose a civil penalty of up to $500 per day for any violation of the ICAA or these rules. The civil penalty amount for common violations is imposed according to the following schedule:

(1) $500 for violations of OAR 333-015-0078(1)(a) (c), (e), (f), (g), (i) and (n).

(2) $300 for the first violation of OAR 333-015-0078(1)(b), (d), (h), (j), (k), (l), (m) and (o).

(3) $500 for the second violation of OAR 333-015-0078(1)(a), (c), (e), (f), (g), (i) and (n).

(4) $400 for the second violation of OAR 333-015-0078(1)(b), (d), (h), (j), (k), (l), (m) and (o).

(5) $500 for the third and any subsequent violations of OAR 333-015-0078(1)(a) through (o).

Statutory/Other Authority: ORS 433.855
Statutes/Other Implemented: ORS 433.835 - 433.870
History:
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 30-2015, f. 12-29-15, cert. ef. 1-1-16
PH 26-2014, f. & cert. ef. 10-8-14
PH 2-2012, f. & cert. ef. 2-1-12
PH 2-2010, f. & cert. ef. 1-14-10
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
OHD 12-2002, f. & cert. ef. 8-27-02
OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02

333-015-0090
Effective Date

Text in ORMS

History:
PH 2-2012, f. & cert. ef. 2-1-12
PH 12-2008, f. 8-15-08, cert. ef. 1-1-09
PH 27-2004, f. & cert. ef. 8-19-04
PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04
Reverted to PH 2-2012, f. & cert. ef. 2-1-12
Sunset on 09-28-2017

333-015-0100
Oregon Menu Labeling Act: Authority and Purpose

(1) These rules are adopted pursuant to the authority granted Oregon Health Authority, Public Health Division in ORS 616.575.

(2) The purpose of the Oregon Menu Labeling Act is to provide consumers with basic nutrition information about prepared food sold at chain restaurants.

Statutory/Other Authority: ORS 616.575
Statutes/Other Implemented: ORS 616.555 – 616.570
History:
PH 11-2011, f. & cert. ef. 10-27-11
PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0105
Oregon Menu Labeling Act: Definitions

For purposes of OAR 333-015-0100 through 333-015-0165, the following definitions shall apply:

(1) "Act" means the Oregon Menu Labeling Act as it appears in 2009 Oregon Laws, chapter 314 (House Bill 2726).

(2) “Alcoholic beverage” means any liquid or solid containing more than one-half of one percent alcohol by volume and capable of being consumed by a human being.

(3) “Calorie and nutrient database” means a commercial computer application or a raw nutrient database that is based on United States Department of Agriculture’s (USDA) National Nutrient Database for Standard Reference.

(4)(a) "Chain restaurant" means a restaurant that is located in Oregon that:

(A) Is a part of an affiliation of 15 or more restaurants within the United States;

(B) Sells standardized menu items that constitute 80 percent or more of the menu items served in the restaurant and at least 14 of the other affiliated restaurants; and

(C) Operates under a trade name or service mark, both as defined in ORS 647.005, which is identical or substantially similar to the trade names or service marks of the affiliated restaurants.

(b) “Chain restaurant” does not mean:

(A) A restaurant located inside a facility that is subject to Oregon Department of Agriculture inspection under an interagency agreement described in ORS 624.530, unless the trade name or service mark for the restaurant differs from the trade name or service mark of the facility containing the restaurant;

(B) A cafeteria of a public or private educational institution;

(C) A health care facility as defined in ORS 422.015; or

(D) A motion picture theater.

(5) “Combination meal menu item” means a group of two or more food products or menu items that is offered on a menu, menu board or food tag as a distinct item for sale and that is offered for sale for more than 90 days during a calendar year and which may or may not give the consumer a choice of food items to be included in the meal.

(6) “Condiment” means a sauce, seasoning or dressing including but not limited to butter, jellies or jams, ketchup, mustard, hot sauce, tartar sauce, and similar items offered for general use without charge and not a part of a standard recipe.

(7) “Food product” means a discrete unit serving of a ready-to-eat food or beverage.

(8)(a) “Food tag” means an informational label placed near a menu item, combination meal menu item, or food product that is identified or indicated by the label.

(b) “Food tag” does not mean a menu or menu board.

(9) “Government standards” means nutrient values defined by the USDA National Nutrient Database for Standard Reference.

(10) “Laboratory testing” means the chemical analysis of food products to determine nutrient content.

(11) “Menu” means a pictorial display or written description of menu items, combination meal menu items, or food products that does not have a fixed location and is not intended for joint viewing by multiple patrons.

(12)(a) “Menu board” means a pictorial or written description of menu items, combination meal menu items, or food products that:

(A) Is located where the customer places an order for a menu item; and

(B) Is not a menu or a food tag.

(b) “Menu board” does not mean a pictorial display used solely for the purpose of marketing.

(13)(a) “Menu item” means a prepared food product that is offered on a menu, menu board or food tag as a distinct article for sale.

(b) “Menu item” does not mean the following:

(A) Condiments that are made available on tables or counters for general use without charge;

(B) Food products that are offered for sale for less than 90 days during a calendar year;

(C) Alcoholic beverages, except as provided for under OAR 333-015-0160; or

(D) Food products in sealed manufacturer packaging.

(14) “Restaurant” means any establishment where food or drink is prepared for consumption by the public or any establishment where the public obtains food or drink so prepared in form or quantity consumable then and there, whether or not it is consumed within the confines of the premises where prepared, and also includes establishments that prepare food or drink in consumable form for service outside the premises where prepared, but does not include railroad dining cars, bed and breakfast facilities or temporary restaurants.

(15) "Self-service item" means any menu item that restaurant customers are permitted to obtain without assistance of a restaurant employee or agent.

(16) “Sealed manufacture packaging” means any food product sold in a sealed package subject to the nutrition labeling requirements for the Federal Nutrition Labeling and Education Act of 1990 (21USC 301) (21CFR101) (PL101-535) (NLEA).

(17) “Serving” means the discrete amount or portion of food as determined by the chain restaurant. Serving does not have the same definition given by the USDA and cited in the NLEA.

(18) “Standardized menu item” means any food product that is prepared with a standard recipe or formula within a chain restaurant, regardless of its name as a menu item.

(19) “Variable menu item” means a menu item that is available in different flavors and varieties at the same price point.

(20) “Verifiable reference values” means nutrient values based on the USDA National Nutrient Database for Standard Reference.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0110
Oregon Menu Labeling Act: General Provisions

(1) Each chain restaurant shall accurately ascertain and make available on site, and in written format, the typical nutrient values for each menu item and combination meal menu item, as the item is usually prepared and offered for sale on menus, menu boards and food tags, including condiments routinely added to a menu item as part of a standard recipe:

(a) Total calories;

(b) Total grams of saturated fat;

(c) Total grams of trans fat;

(d) Total grams of carbohydrates; and

(e) Total milligrams of sodium.

(2) OAR 333-015-0110(1) does not apply to:

(a) Food products that are offered for sale for less than 90 days in a calendar year;

(b) Condiments;

(c) Alcoholic beverages not listed as menu items; or

(d) Unopened food products sold in sealed manufacturer packaging that are not intended to be part of the menu item or combination meal menu item.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0115
Oregon Menu Labeling Act: Written Formats for Nutrition Information

(1) Chain restaurants must provide nutrition information in one or more of the following formats:

(a) A printed menu;

(b) A printed menu insert; or

(c) A brochure or printed handout.

(2) A copy of nutrition information shall be made available to each customer who requests it. Customers must not be required to return copies of nutrition information to the chain restaurant.

(3) Nutrition information for menu items must be labeled and organized in a manner that is readable, consistent with the organization and naming conventions of menu items on menus, menu boards or food tags and must be in a font size of not less than nine point.

(4) Nutrition information for menu items and food products in a combination meal menu item must be clearly labeled in a manner that is consistent with the name of the item as it is sold in the combination meal menu item.

(5) Nutrition information for menu items that are also sold as a part of a combination meal menu item under a different name must be listed under both names.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0120
Oregon Menu Labeling Act: Nutrition Labeling of Variable Menu Items

For variable menu items, the chain restaurant shall provide required nutrition information as follows:

(1) If both the highest and lowest value of the variable menu item is within 0 to 10 percent of the median value, the median value alone of the required nutrition information may be listed.

(2) If both the highest and lowest value of the variable menu item is within 11 to 20 percent of the median value, the range of values of the required nutrition information must be listed.

(3) If neither section (1) or (2) of this rule applies, each flavor or variety of the menu item must be listed as a separate menu item and accompanied by required nutrition information.

(4) In lieu of sections (1) through (3) of this rule, each flavor or variety of a menu item may be listed as a separate menu item and accompanied by required nutrition information.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0125
Oregon Menu Labeling Act: Nutrition Labeling of Combination Meal Menu Items

Labeling of combination meal menu items is not required as long as typical nutrient values are provided for the individual food products or menu items that comprise the combination meal menu item.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0130
Oregon Menu Labeling Act: Nutrition Information for Shared Menu Items or Shared Combination Meal Menu Items

Nutrition information for menu items or combination meal menu items intended to serve multiple individuals must state the number of individuals intended to be served by the menu items or combination meal menu items and the total typical nutrient values per individual serving.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0135
Oregon Menu Labeling Act: Acceptable Methods for Determining Typical Nutrient Values for Required Nutrition Information

A chain restaurant must utilize one of the following methods for determining typical nutrient values for menu items and combination meal menu items:

(1) Calorie and nutrient databases as that term is defined in OAR 333-015-0105;

(2) Verifiable reference values as that term is defined in OAR 333-015-0105;

(3) Laboratory testing as that term is defined in OAR 333-015-0105; and

(4) Government standards as that term is defined in OAR 333-015-0105.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0140
Oregon Menu Labeling Act: Verifiable and Accurate Information

(1) A chain restaurant may not make available to customers any typical nutrient values that are substantially inaccurate or that the restaurant knows or should know to be false or misleading.

(2) A chain restaurant may be found by the Oregon Public Health Division to have substantially inaccurate nutrient values if the chain restaurant failed to use one (or more) of the acceptable methods for determining nutrient values described in these rules.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0145
Oregon Menu Labeling Act: Nutrition Information for Self-Service Items

For menu items offered in a buffet, salad bar or other self-service area, nutrition information within a chain restaurant must specify — The typical nutrient values for an individual serving including:

(1) The size of an individual serving expressed in standard weights and measures; and

(2) The size of an individual serving expressed in relation to the utensil provided by the chain restaurant for serving that item or the individual servings as prepared or displayed by the chain restaurant.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0150
Oregon Menu Labeling Act: Trans Fat

A restaurant shall follow U.S. Food and Drug Administration (FDA) guidelines for labeling trans fat. This means that trans fat does not have be listed if the total trans fat in the food is less than 0.5 grams per labeled serving, and the chain restaurant makes no claims regarding fat, fatty acids or cholesterol content.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0155
Oregon Menu Labeling Act: Rounding Rules

Chain restaurants may round numerical values as follows, except for typical nutrient values for alcoholic beverages:

(1) Total calories values:

(a) For values above 50 calories, the disclosed value shall be rounded to the nearest value evenly divisible by 10.

(b) For values equal to or less than 50 calories, the disclosed value shall be rounded to the nearest value evenly divisible by five.

(2) Total grams of saturated fat values:

(a) For values above five grams of saturated fat, the disclosed value shall be rounded to the nearest gram.

(b) For values equal to or less than five grams of saturated fat, the disclosed value shall be rounded to the nearest 0.5 gram.

(c) For values below 0.5 grams of saturated fat, the disclosed value shall be rounded down to zero.

(3) Total grams of carbohydrates values:

(a) For values equal to or greater than one gram of carbohydrate, the disclosed value shall be rounded to the nearest gram.

(b) For values less than one gram of carbohydrate, the disclosed value shall be expressed as “contains less than one gram” or “less than one gram.”

(c) For values below 0.5 grams of carbohydrate, the disclosed value shall be rounded down to zero.

(4) Total milligrams of sodium values:

(a) For values above 140 milligrams of sodium, the disclosed value shall be rounded to the nearest value evenly divisible by 10.

(b) For values between 5 and 140 milligrams of sodium, the disclosed value shall be rounded to the nearest value evenly divisible by five.

(c) For values below five milligrams of sodium, the disclosed value shall be rounded down to zero.

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0160
Oregon Menu Labeling Act: Alcoholic Beverages

(1) Chain restaurants must provide nutrition information for alcoholic beverages offered on a menu, menu board or food tag for more than 90 days. Nutrition information for alcoholic beverages must be based on the following typical nutrient values for alcohol:

(a) For wine, 122 calories, 4 grams of carbohydrate and 7 milligrams of sodium per 5-ounces;

(b) For beer, other than light beer, 153 calories, 13 grams of carbohydrates and 14 milligrams of sodium per 12-ounces;

(c) For light beer, 103 calories, 6 grams of carbohydrates and 14 milligrams of sodium per 12-ounces;

(d) For distilled spirits, 96 calories per 1.5 ounces; and

(e) For mixed drinks or drinks that are a combination of wine, beer, or distilled spirits and one or more additional ingredients, chain restaurants must provide the total typical nutrient value for the mixed drink using the values for alcohol in OAR 333-015-0160(1), combined with the typical nutrient values for other ingredients based on acceptable methods for determining typical nutrient values under 333-015-0135(1).

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0165
Oregon Menu Labeling Act: Disclaimers and Additional Nutrition Information

(1) Chain restaurants may publish truthful disclaimers, notifying customers that there may be variations in nutrient content across servings, due to differences in preparation, inconsistent service sizes, ingredients, or custom orders.

(2) Chain restaurants may publish truthful additional nutrition information for menu items including but not limited to cholesterol, fiber, sugar, protein, calcium, iron, vitamin C, vitamin A, and allergens.

(3)(a) Chain restaurants may publish a statement providing information about the recommended daily intake amounts for calories, saturated fat and sodium as follows:

(b) “Recommended limits for a 2,000 calorie daily diet are 20 grams of saturated fat and 1,700 milligrams of sodium.”

Statutory/Other Authority: 2009 OL Ch. 314
Statutes/Other Implemented: 2009 OL Ch. 314
History:
PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0202
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Purpose and Effective Date

The purpose of licensing tobacco retailers is to promote compliance and improve enforcement of local ordinances and rules, state laws and rules and federal laws and regulations that govern the retail sale of tobacco products and inhalant delivery systems.

Statutory/Other Authority: ORS 431A.192, ORS 431A.218 & ORS 413.042
Statutes/Other Implemented: ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0207
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Definitions

The following definitions apply to these rules unless the context indicates otherwise:

(1) "Annual Oregon Health Authority license application fee" or "annual Authority license application fee" means the fee adopted by the Authority in OAR 333-015-0227 to be paid by a retailer of tobacco products or inhalant delivery systems at the time that the retailer submits an application under OAR 150-323-0500.

(2) "Authority" means the Oregon Health Authority.

(3) "Department" means the Oregon Department of Revenue.

(4) "Department of Revenue fee" means the annual fee adopted by the Department to be paid by a retailer at the same time the annual Authority license application fee is paid.

(5) "Designee" means the agent, or employee of the retailer.

(6)(a) "Inhalant delivery system" means:

(A) A device that can be used to deliver nicotine or cannabinoids in the form of a vapor or aerosol to a person inhaling from the device; or

(B) A component of a device described in this subsection or a substance in any form sold for the purpose of being vaporized or aerosolized by a device described in this subsection, whether the component or substance is sold separately or is not sold separately.

(b) Inhalant delivery system does not include:

(A) Any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose; and

(B) Tobacco products, as defined in ORS 431A.175 and set out in the definitions below.

(7) "Local fee" means a fee adopted by a city or governing body of a Local Public Health Authority adopted by an ordinance to be paid by a retailer.

(8) "Local Public Health Authority" or "LPHA" means a county government; a health district formed under ORS 431.443; or an intergovernmental entity that provides public health services pursuant to an agreement entered into under ORS 190.010. This does not include LPHAs requiring a license or other authorization as described in ORS 431A.220.

(9) "Misbranded and adulterated tobacco product" has the meaning defined in Section 902 and 903 of the Federal Food, Drug, and Cosmetic Act.

(10) "Premises" means the real property, as designated by a unique address, on which a business that makes retail sales of tobacco products or inhalant delivery systems is located. When used in these rules, "premises" includes "establishments", as used in ORS 431A.183.

(11) "Retailer" means a person or entity, as that term is defined in ORS 60.001, that sells for consideration, offers for retail sale, holds for sale, or exchanges or offers to exchange tobacco products or inhalant delivery systems or that distributes free or low-cost samples of tobacco products or inhalant delivery systems from a premises.

(12) “These rules” means OAR 333-015-0202 to 333-015-0272.

(13) "Tobacco product" means bidis, cigars, cheroots, stogies, periques, granulated, plug cut, crimp cut, ready rubbed and other smoking tobacco, snuff, snuff flour, cavendish, shisha, hookah tobacco, plug and twist tobacco, fine-cut and other chewing tobaccos, shorts, refuse scraps, clippings, cutting and sweepings of tobacco prepared in such a manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking, cigarettes, or a device that can be used to deliver tobacco products to a person using the device that has not been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose as defined in ORS 431A.175.

(14) "Tobacco retail license" means a license issued by the Department to a retailer for the sale of tobacco products or inhalant delivery systems.

(15) "Tobacco retail license fee" means the fee adopted by the Department in OAR 150-323-0500, the fee adopted by the Authority in OAR 333-015-0227, and any local fee adopted by a city or governing body of a LPHA where a retailer is located.

(16) "Unique address" means the physical location of the premises where tobacco products or inhalant delivery systems are sold and may be designated by a street number and name, unit, rural route number, or other designation as recognized by the Unites States Postal Office.

(17) "Vending machine" means a device that, upon the insertion of tokens, money or another form of payment, dispense tobacco product(s) or inhalant delivery system(s).

Statutory/Other Authority: ORS 431A.218, ORS 167.780, ORS 431A.175, ORS 431A.183 & ORS 413.042
Statutes/Other Implemented: ORS 167.780, ORS 431A.175, ORS 431A.183, ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0212
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Oregon Health Authority Responsibilities

The Oregon Health Authority shall:

(1) Ensure that state standards established by state laws or rules, and federal standards established by federal laws or regulations, regarding regulation of the retail sale of tobacco products and inhalant delivery systems, are administered and enforced consistently throughout the state;

(2) Maintain a system for receiving and responding to public complaints, providing educational materials, conducting inspections, and issuing notices of violation;

(3) Provide technical assistance to LPHAs regarding the regulation of the retail sale of tobacco products and inhalant delivery systems; and

(4) Assess the effectiveness of state and local programs for regulating the retail sale of tobacco products and inhalant delivery systems.

Statutory/Other Authority: ORS 431A.218 & ORS 413.042
Statutes/Other Implemented: ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0217
Retail Sale of Tobacco Products and Inhalant Delivery Systems: LPHA Responsibilities

(1) An LPHA may:

(a) Enforce an ordinance adopted by the local jurisdiction regulating the retail sale of tobacco products and inhalant delivery systems for purposes related to public health and safety;

(b) Administer and enforce standards established by state laws or rules regarding regulating the retail sale of tobacco products and inhalant delivery systems;

(c) Educate tobacco retailers on local, state, and federal laws and standards regulating the retail sale of tobacco products and inhalant delivery systems.

(2) If an LPHA assumes one or more of the responsibilities listed in section (1) of this rule, they:

(a) May adopt a local fee to conduct these activities; and

(b) Shall enter into an Intergovernmental Agreement with the Authority to ensure information sharing necessary for the effective administration and enforcement of regulations and standards regulating the retail sale of tobacco products and inhalant delivery systems.

Statutory/Other Authority: ORS 431A.218
Statutes/Other Implemented: ORS 431A.190-431A.220
History:
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0222
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Licensing Procedures

(1) A retailer shall obtain a tobacco retail license annually from the Department, per processes laid out in OAR 150-323-0500.

(2) This does not include retailers that have obtained a license from a city or county authorized pursuant to an ordinance approved under ORS 431A.220.

(3) These licensing procedures do not apply to retailers located on reservation or tribal trust land of a federally recognized Indian tribe.

Statutory/Other Authority: ORS 431A.218
Statutes/Other Implemented: ORS 431A.190-431A.220
History:
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0227
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Annual Oregon Health Authority License Application Fee

(1) The annual Authority license application fee shall be reasonably calculated to pay the expenses of license administration and enforcement, including but not limited to retailer education, inspection and compliance checks, investigation of violations and enforcement actions against violators.

(2) The annual Authority license application fee for applications effective on or after January 1, 2022, is $723. The Authority shall review the fee amount annually.

(3) Upon issuance by the Department of a tobacco retail license to a retailer, the annual Authority license application fee is nonrefundable. If the Department denies an initial or renewal application for a tobacco retail license, and that denial becomes final, then the Department will refund the annual Authority license application fee.

Statutory/Other Authority: ORS 431A.210
Statutes/Other Implemented: ORS 431A.190-431A.220
History:
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0232
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Education and Outreach

(1) As part of program administration, the Authority or the LPHA shall provide educational resources to retailers to support compliance with state and federal laws, rules and regulations regulating the retail sale of tobacco products and inhalant delivery systems.

(2) Educational materials may be made available in a retailer’s preferred language upon request.

Statutory/Other Authority: ORS 431A.218
Statutes/Other Implemented: ORS 431A.190-431A.220
History:
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0237
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Identification for Purchasing Tobacco Products or Inhalant Delivery Systems

A retailer, or their designee, is responsible for ensuring that all sales of tobacco products or inhalant delivery systems to any person under 30 years of age are verified by means of photographic identification containing the bearer’s date of birth by verifying their age by means of one of the following pieces of photo identification:

(1) The person’s passport issued by the United States or a foreign government;

(2) The person’s motor vehicle operator’s license issued by this state or another state of the United States;

(3) An identification card issued under ORS 807.400;

(4) A United States military identification card;

(5) An identification card issued by a federally recognized Indian tribe; or

(6) Any other identification card issued by a state or territory of the United States that bears a picture of the person, the name of the person, the person’s date of birth and a physical description of the person.

Statutory/Other Authority: ORS 431A.218, ORS 167.755, ORS 431A.175, ORS 431A.183, ORS 413.042, ORS 431.110, ORS 431.141-431.144, ORS 167.750, 21 CFR § Part 1100, 1140 & 21 USC 387, 387a, 387f
Statutes/Other Implemented: ORS 167.755, ORS 431A.175, ORS 431A.183 & ORS 431A.190-431A.220
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0242
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Compliance Inspections

(1) The Oregon Health Authority (Authority) or the local public health authority (LPHA) shall conduct annual unannounced inspections of retailers to ensure compliance with, and to enforce, state laws and rules and federal laws and regulations that govern the retail sale of tobacco products or inhalant delivery systems for purposes related to public health and safety. Inspections shall check compliance for any of the violations listed in OAR 333-015-0257 other than subsection (1)(a).

(2) Inspections may take place:

(a) Only in areas open to the public;

(b) Only during the hours that tobacco products or inhalant delivery systems are distributed or sold; and

(c) No more frequently than once a month in any single premises unless a compliance problem exists or is suspected. If there is more than one location on the premises where tobacco products or inhalant delivery systems are sold, the Authority or the LPHA may conduct inspections at each location.

(3) Remediation plan:

(a) The Authority or the LPHA may develop a remediation plan with a retailer, or their designee, to correct violations discovered during an inspection under this rule as an alternative to a civil penalty. If the retailer, or their designee, refuses to develop a remediation plan, the Authority or the LPHA may impose a civil penalty, as determined by OAR 333-015-0262. Compliance with the remediation plan must be completed within 15 calendar days of the inspection.

(b) Follow-up inspection:

(A) The Authority or the LPHA may make an unannounced follow-up inspection no sooner than 15 calendar days after the initial inspection.

(B) If a violation of these rules is found during the follow-up inspection or post-remediation plan inspection, the Authority or the LPHA may impose a civil penalty, as determined by OAR 333-015-0262.

(c) A retailer is eligible for a remediation plan described in this rule if either the Authority or the LPHA has discovered a violation of this rule by the retailer and a follow-up inspection has not been conducted within the review period as defined in OAR 333-015-0262.

(4) Cooperation with inspection. The retailer, or their designee, shall permit the Authority or the LPHA access to the business, in order to determine compliance with these rules.

Statutory/Other Authority: ORS 431A.218, ORS 167.765, ORS 167.770, ORS 167.780, ORS 431A.175, ORS 431A.178, ORS 431A.183 & ORS 413.042
Statutes/Other Implemented: ORS 167.765, ORS 167.770, ORS 167.780, ORS 431A.175, ORS 431A.178, ORS 431A.183, ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0247
Retail Sales of Tobacco Products and Inhalant Delivery Systems: Minimum Legal Sales Age Inspections

(1) The Oregon Health Authority (Authority) or the local public health authority (LPHA) shall conduct annual random, unannounced inspections of retailers to ensure compliance with, and to enforce, the laws and rules designed to discourage the sale of tobacco products and inhalant delivery systems to persons under 21 years of age.

(2) Inspections may take place:

(a) Only in areas open to the public;

(b) Only during the hours that tobacco products or inhalant delivery systems are distributed or sold; and

(c) No more frequently than once a month in any single premises unless a compliance problem exists or is suspected. If there is more than one location on the premises where tobacco products or inhalant delivery systems are sold, the Authority or the LPHA may conduct inspections at each location.

(3) The Authority or the LPHA may use persons under 21 years of age to complete inspections to determine compliance with these rules.

(4) The Authority or the LPHA may impose civil penalties as described in OAR 333-015-0262 for any violations of these rules.

Statutory/Other Authority: ORS 431A.218, ORS 167.755, ORS 431A.175, ORS 431A.178, ORS 431A.183 & ORS 413.042
Statutes/Other Implemented: ORS 167.755, ORS 431A.175, ORS 431A.178, ORS 431A.183, ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0252
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Complaint Inspections

(1) The Oregon Health Authority (Authority) or the local public health authority (LPHA) may also conduct inspections described in OAR 333-015-0242 and OAR 333-015-0247 upon receipt of a valid complaint.

(2) Cooperation with inspection. The retailer, or their designee, shall permit the Authority or the LPHA access to the business, in order to determine compliance with these rules.

Statutory/Other Authority: ORS 431A.218, ORS 167.755, ORS 167.765, ORS 167.770, ORS 167.780, ORS 431A.175, ORS 431A.178, ORS 431A.183 & ORS 413.042
Statutes/Other Implemented: ORS 167.755, ORS 167.765, ORS 167.770, ORS 167.780, ORS 431A.175, ORS 431A.178, ORS 431A.183, ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0257
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Violations

(1) Violations for a retailer include the following acts or omissions by the retailer or their designee:

(a) Selling or allowing to be sold tobacco products or inhalant delivery systems to a person under 21 years of age in violation of ORS 431A.175(2)(a) or 21 USC 387f(d)(5). A violation of this subsection occurs regardless of whether the retailer or their designee knows the buyer was under the age of 21;

(b) Failing to post a notice substantially similar to the following notice: The sale of tobacco products and inhalant delivery systems to persons under 21 years of age is prohibited by law. Any person who sells, or allows to be sold, a tobacco product or inhalant delivery system to a person under 21 years of age is in violation of Oregon law. Such notice shall be posted in a location that is clearly visible to the seller and the purchaser;

(c) Selling, distributing, or allowing to be sold an inhalant delivery system that does not comply with a labeling requirement in OAR 333-015-0310 to 333-015-0320;

(d) Selling, distributing, or allowing to be sold an inhalant delivery system that does not comply with packaging requirements in OAR 333-015-0340 to 333-015-0360 to be child-resistant and not attractive to minors;

(e) Selling, distributing, or allowing to be sold cigarettes in any form other than a sealed package that contains at least 20 cigarettes;

(f) Locating tobacco products or inhalant delivery systems where they are accessible by store customers without assistance by a store employee, unless persons under 21 years of age are prohibited from entering the premises. Vending machines selling cigarettes, smokeless tobacco or inhalant delivery systems, whether or not they are only accessible to individuals over the age of 21, are prohibited;

(g) Selling or dispensing cigarettes, smokeless tobacco or inhalant delivery systems from a vending machine, per ORS 180.441(2), regardless of whether persons under 21 years of age are prohibited from entering the premises;

(h) Selling or distributing any quantity of smokeless tobacco or cigarette tobacco that is smaller than the smallest package distributed by the manufacturer for individual consumer use;

(i) Selling flavored cigarettes, other than menthol;

(j) Offering, or causing to offer, gifts with a cigarette or smokeless tobacco purchase;

(k) Distributing free samples of tobacco products or inhalant delivery systems, except smokeless tobacco may be distributed in an area where persons under the age of 21 are prohibited, as described in ORS 180.486;

(l) Selling "light", "low" or "mild" cigarettes;

(m) Selling misbranded or adulterated tobacco products or inhalant delivery systems;

(n) Failing to display a tobacco retail license;

(o) Operating without a license;

(p) Failing to cooperate with an inspection, which includes, but is not limited to, refusing access to the premises, interference, a threat, or harassment that delays, impairs or obstructs the Oregon Health Authority (Authority) or the local public health authority (LPHA) from carrying out its inspection or other duties under these rules;

(q) Failing to comply with the requirement of OAR 333-015-0237 before selling or allowing to be sold a tobacco product or inhalant delivery system to a person;

(r) Any other violation of state law or rule or federal law or regulation that governs the wholesale or retail sale of tobacco products or inhalant delivery systems for purposes related to public health and safety.

(2) Each product not in compliance with OAR 333-015-0340 to 333-015-0360 or sold in violation of these rules may be considered a separate violation. For example, if 10 liquid nicotine containers are sold without child-resistant packaging that may be considered a total of 10 violations.

Statutory/Other Authority: ORS 431A.218, ORS 167.755, ORS 167.765, ORS 167.780, ORS 431A.175, ORS 431A.178, ORS 431A.183, ORS 180.486 & ORS 413.042
Statutes/Other Implemented: ORS 167.755, ORS 167.765, ORS 167.780, ORS 431A.175, ORS 431A.178, ORS 431A.183, ORS 180.486, ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0262
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Civil Penalties for Violations

(1) The Oregon Health Authority (Authority) may impose a civil penalty not exceeding $5000 for each violation described in OAR 333-015-0257. A retailer may be subject to multiple civil penalties at a single inspection if the Authority or the local public health authority (LPHA) finds multiple violations of different rules or multiple instances of violations of the same rule. Each instance of a violation of a different requirement, obligation, prohibition, rule, statute, or regulation is a separate and distinct violation subject to the increasing penalty schedule described in section (2) of this rule.

(2) The Authority may impose civil penalties against a retailer according to the following schedule:

(a) $1000 for the first violation in the review period. In addition to issuing a civil penalty for the first violation, within 90 days the retailer shall read the retailer manual available from the Authority.

(b) $2000 for the second violation of the same subsection of OAR 333-015-0257 within the review period.

(c) $3500 for the third violation of the same subsection of OAR 333-015-0257 within the review period.

(d) $5000 for the fourth or any subsequent violation of the same subsection of OAR 333-015-0257 within the review period.

(3) For the purposes of this rule, “review period” means the 60-month period from the date the first violation is discovered. A new 60-month review period begins on the date the first violation is discovered after the prior review period ends.

(4) If the Authority imposes a penalty under this section, the penalty imposition may be appealed as a contested case under ORS chapter 183 within 21 days of the date the notice of intent is served on the retailer.

(5) For purposes of determining the applicable civil penalty amount for violation(s) as described in section (2) of this rule, the Authority does not consider violations discovered during an inspection where the retailer and the Authority or the LPHA develop a remediation plan.

Statutory/Other Authority: ORS 431A.218, ORS 431A.178 & ORS 413.042
Statutes/Other Implemented: ORS 431A.178, ORS 431A.190-431A.220, ORS 431.110 & ORS 431.141-431.144
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 198-2022, minor correction filed 09/12/2022, effective 09/12/2022
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0267
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Suspension and Revocation for Violations of OAR 333-015-0001 through 333-015-0360

In addition to a civil penalty, a license may be suspended or revoked by the Department, as described in OAR 150-323-0520.

Statutory/Other Authority: ORS 431A.202 & ORS 431A.218
Statutes/Other Implemented: ORS 431A.190-431A.220
History:
PH 16-2022, adopt filed 02/10/2022, effective 02/10/2022

333-015-0272
Retail Sale of Tobacco Products and Inhalant Delivery Systems: Biennial Report

Contents of Report: The Authority shall biennially submit a report to the Governor and to the appropriate committee or interim committee of the Legislative Assembly to which matters of public health are assigned. The report shall include:

(1) A description of the state's activities to enforce the laws described in ORS 431A.175 during the biennium; and

(2) A description outlining the overall success the state has achieved during the previous biennium in reducing the availability of tobacco products and inhalant delivery systems to persons under 21 years of age.

Statutory/Other Authority: ORS 431A.183 & ORS 431A.218
Statutes/Other Implemented: ORS 431A.183 & ORS 431A.190-431A.220;
History:
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 89-2021, renumbered from 333-015-0220, filed 12/22/2021, effective 12/22/2021
PH 23-2019, amend filed 11/18/2019, effective 01/01/2020
PH 23-2017, amend filed 12/21/2017, effective 01/01/2018
PH 19-2016, f. & cert. ef. 6-24-16
PH 32-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

333-015-0300
Packaging and Labeling: Purpose, Scope and Effective Date

(1) The purpose of OAR 333-015-0300 to 333-015-0360 is to set the minimum standards for the labeling and packaging of inhalant delivery systems that are sold to a consumer.

(2) These rules do not apply to an inhalant delivery system or prefilled inhalant delivery system that contains cannabinoids if that inhalant delivery system or prefilled inhalant delivery system complies with the packaging and labeling requirements in OAR 845-025-7000 to 845-025-7190.

Statutory/Other Authority: ORS 431A.175
Statutes/Other Implemented: ORS 431A.175
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0305
Packaging and Labeling: Definitions

For the purposes of OAR 333-015-0300 to 333-015-0360:

(1) "Authority" means the Oregon Health Authority.

(2) "Cannabinoid" means any of the chemical compounds that are the active constituents of marijuana.

(3) "Child-resistant" means having inner or outer packaging that is:

(a) Intended to protect children from nicotine exposure in the household environment or other environment where the product is used;

(b) Designed or constructed to be significantly difficult for children under five years of age to open and not difficult for adults to use properly, as defined by 16 CFR 1700.20 (1995); and

(c) Re-sealable for any product intended for more than a single use, such as a fillable inhalant delivery system.

(4) "Consumer product" means any article, or component part thereof, produced or distributed for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise.

(5) "Distributor" means a person or company that supplies stores or businesses with goods.

(6) "Fillable inhalant delivery system" means a product that is sold without nicotine or non-nicotine inhalants, not permanently sealed and can be opened and filled with any inhalant.

(7) "Inhalant" means nicotine, or any other substance that:

(a) Is in a form that allows the nicotine, cannabinoid or substance to be delivered into a person’s respiratory system;

(b) Is inhaled for the purpose of delivering the nicotine, cannabinoid or other substance into a person’s respiratory system; and

(c)(A) Is not approved by, or emitted by a device approved by, the United States Food and Drug Administration (FDA) for a therapeutic purpose; or

(B) If approved by, or emitted by a device approved by, the United States Food and Drug Administration for a therapeutic purpose, is not marketed and sold solely for that purpose.

(8)(a) "Inhalant delivery system" means:

(A) A device that can be used to deliver nicotine or cannabinoids in the form of a vapor or aerosol to a person inhaling from the device; or

(B) A component of a device described in this section or a substance in any form sold for the purpose of being vaporized or aerosolized by a device described in this section, whether the component or substance is sold separately or is not sold separately.

(b)(A) Inhalant delivery system does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for any other therapeutic purpose, if the product is marketed and sold solely for the approved purpose; and

(B) Tobacco products.

(9) "Inner package" or "inner packaging" means the materials used to wrap or protect a product that must be opened by a consumer in order to have access to the product and that may also be but is not required to be the outer package.

(10) "Liquid nicotine container" means a consumer product that consists of a container that:

(a) Has an opening from which nicotine in a solution or other form is accessible and can flow freely through normal and foreseeable use by a consumer; and

(b) Is used to hold soluble nicotine in any concentration.

(11) "Manufacturer or distributor contact information" means the name, city, state and country of the manufacturer who made the inhalant delivery system.

(12) "Minor" means an individual under 18 years of age.

(13) "Nicotine" means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived.

(14) "Non-nicotine liquid container" means a container that:

(a) Has an opening from which liquid non-nicotine or liquid non-cannabinoid substances can flow freely through normal and foreseeable use by a consumer; and

(b) Is not used to hold liquid nicotine or cannabinoids.

(15) "Outer package" or "outer packaging" means the external material used to wrap or protect a product that is visible to a consumer in the retail setting such as, but not limited to, a box or container.

(16) "Packaging" means any of the materials used to wrap or protect an inhalant delivery system and includes but is not limited to the inner packaging and outer packaging.

(17) "Prefilled inhalant delivery system" means an inhalant delivery system that is permanently sealed, prefilled, disposable and not intended to be disassembled by the consumer.

(18) "Retail setting" means a place of business in which merchandise is primarily sold directly to an ultimate consumer.

(19) "Retailer" means a person or entity, as that term is defined in ORS 60.001, that sells for consideration, offers for retail sale, holds for sale, or exchanges or offers to exchange tobacco products or inhalant delivery systems or that distributes free or low-cost samples of tobacco products or inhalant delivery systems from a premises.

(20) "These rules" means OAR 333-015-0300 to 333-015-0360.

.

Statutory/Other Authority: ORS 431A.175 & ORS 431A.218
Statutes/Other Implemented: ORS 431A.175 & ORS 431A.190-431A.220
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0310
Labeling Requirements for Liquid Nicotine Containers

A label on a liquid nicotine container must conform to the labeling standards set forth in 21 CFR Part 1143.3, including but not limited to:

(1) The label bears the following required warning statement on the package label: "WARNING: This product contains nicotine. Nicotine is an addictive chemical."

(2) The required warning statement must appear directly on the label and must be clearly visible underneath any cellophane or other clear wrapping as follows:

(a) Be located in a conspicuous and prominent place on the two principal display panels of the container and the warning area must comprise at least 30 percent of each of the principal display panels;

(b) Be printed in at least 12-point font size and ensures that the required warning statement occupies the greatest possible proportion of the warning area set aside for the required text;

(c) Be printed in conspicuous and legible Helvetica bold or Arial bold type (or other sans serif fonts) and in black text on a white background or white text on a black background in a manner that contrasts by typography, layout, or color, with all other printed material on the label;

(d) Be capitalized and punctuated as indicated in section (1) of this rule; and

(e) Be centered in the warning area in which the text is required to be printed and positioned such that the text of the required warning statement and the other information on the principal display panel have the same orientation.

(3) A liquid nicotine container that would otherwise be required to bear the warning in section (1) of this rule but is too small or otherwise unable to accommodate a label with sufficient space to bear such information is exempt from compliance with the requirement provided that the information and specifications required under sections (1) and (2) of this rule appear on the carton or other outer container or wrapper if the carton, outer container, or wrapper has sufficient space to bear the information, or appear on a tag otherwise firmly and permanently affixed to the tobacco product package. In such cases, the carton, outer container, wrapper, or tag will serve as the location of the principal display panel.

Statutory/Other Authority: ORS 431A.175, ORS 431A.218 & 21 CFR Part 1143.3
Statutes/Other Implemented: ORS 431A.175 & ORS 431A.190-431A.220
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0320
Labeling Requirements for Prefilled Inhalant Delivery Systems

A label on a prefilled inhalant delivery system must conform to the labeling standards in OAR 333-015-0310, if the prefilled inhalant delivery system contains nicotine.

Statutory/Other Authority: ORS 431A.175 & 21 CFR Part 1143.3
Statutes/Other Implemented: ORS 431A.175
History:
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0340
Packaging Requirements for Liquid Nicotine Containers

A liquid nicotine container for sale to a consumer:

(1) Shall be:

(a) Child-resistant; and

(b) Labeled in accordance with OAR 333-015-0310.

(2) Shall not be packaged in a manner that is attractive to minors.

Statutory/Other Authority: ORS 431A.175
Statutes/Other Implemented: ORS 431A.175
History:
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0345
Packaging Requirements for Non-nicotine Liquid Containers

A non-nicotine liquid container for sale to a consumer:

(1) Shall be child-resistant.

(2) Shall not be packaged in a manner that is attractive to minors.

Statutory/Other Authority: ORS 431A.175
Statutes/Other Implemented: ORS 431A.175
History:
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0350
Packaging Requirements for Prefilled Inhalant Delivery Systems

A prefilled inhalant delivery system for sale to a consumer shall not be packaged in a manner that is attractive to minors.

Statutory/Other Authority: ORS 431A.175
Statutes/Other Implemented: ORS 431A.175
History:
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0355
Packaging Requirements for Fillable Inhalant Delivery Systems

(1) A fillable inhalant delivery system packaged without a liquid nicotine container for sale to a consumer shall not be packaged in a manner that is attractive to minors.

(2) A fillable inhalant delivery system packaged with a liquid nicotine container for sale to a consumer shall comply with OAR 333-015-0310 and OAR 333-015-0340.

Statutory/Other Authority: ORS 431A.175
Statutes/Other Implemented: ORS 431A.175
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16

333-015-0357
Packaging Attractive to Minors

An inhalant delivery system is packaged in a manner that is attractive to minors if it is packaged in a manner that is designed, intended, or reasonably appears to be attractive to minors. Features of the packaging that may reasonably appear be attractive to minors include but are not limited to the following:

(1) The shape of any animal, commercially recognizable toy, sports equipment, commercially recognizable candy, or images of minors; or

(2) A commercially recognizable toy, sports equipment, or commercially recognizable candy attached to the package.

Statutory/Other Authority: ORS 431A.175
Statutes/Other Implemented: ORS 431A.175
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 249-2018, adopt filed 08/30/2018, effective 09/01/2018

333-015-0360
Verification of Packaging that is Child-Resistant

Retailers shall provide verification of a manufacturer’s written laboratory testing report describing the results of whether packaging is child-resistant based on the protocol set forth in 16 CFR 1700.20 (1995) to the Oregon Health Authority (Authority) upon the Authority’s request.

Statutory/Other Authority: ORS 431A.175 & ORS 413.042
Statutes/Other Implemented: ORS 431A.175
History:
PH 48-2023, amend filed 10/09/2023, effective 10/09/2023
PH 16-2022, amend filed 02/10/2022, effective 02/10/2022
PH 249-2018, amend filed 08/30/2018, effective 09/01/2018
PH 20-2016, f. & cert. ef. 6-24-16