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The Oregon Administrative Rules contain OARs filed through April 15, 2016
 
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OREGON HEALTH AUTHORITY,
PUBLIC HEALTH DIVISION

 

DIVISION 15

IMPLEMENTATION OF REQUIREMENTS FOR OREGON'S INDOOR CLEAN AIR ACT,
NUTRITIONAL INFORMATION AT CHAIN RESTAURANTS AND STANDARDS FOR REDUCING
THE SALE OF TOBACCO AND INHALANT DELIVERY SYSTEMS TO MINORS

Oregon Indoor Clean Air Act

333-015-0025

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 smokefree 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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 -433.875, 433.990(5)
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12

333-015-0030

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) "Cigarillos" means a smoking device wrapped in tobacco leaf, rather than paper, that contains less than three grams of tobacco and measures less than 100 mm in length.

(7) "Employer" means any entity or individual who engages an individual to perform work or services in an area where smoking is prohibited under the employer’s control.

(8) "Enclosed area" means all space between a floor and a ceiling that is enclosed on two or more sides by permanent or temporary walls or windows, exclusive of doors, passageways or gaps. If no ceiling is present, "enclosed area" means all space that is included by three or more sides by permanent or temporary walls or windows, exclusive of doors, passageways or gaps.

(9) "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.

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

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

(12) "Extended period of time" means more than 365 consecutive days.

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

(14) "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.

(15) "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.

(16)(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.

(17) "Local Public Health Authority" or "LPHA" means the county government, unless a health district has been formed under ORS 431.414, 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.

(18) "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.

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

(20) "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 657A.250 or a facility providing adult day care as defined in 410.490.

(21) "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.

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

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

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

(25) "Rooms designated by the owner or entity in charge of a hotel or motel as rooms in which smoking is permitted" means sleeping rooms or suites in that hotel or motel.

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

(27) "Smoke shop" means a business that is certified with the Oregon Health Authority as a smoke shop under OAR 333-015-0068.

(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) "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.

(31) "10 feet" means 10 linear feet, measured in a straight line between the points in question.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 18-2008, f. 11-14-08, cert. ef. 1-1-09; PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; PH 11-2011, f. & cert. ef. 10-27-11; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0035

General Provision

(1) No person shall smoke, aerosolize or vaporize an inhalant or carry a lighted smoking instrument in a public place 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(5) and (6).

(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(4) through (7). In providing a smoke, aerosol, or vapor free place of employment, an employer is responsible for taking steps to ensure that 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;

(d) Ventilation intakes that serve an enclosed area; and

(e) Accessibility ramps.

(3) 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;

(d) Ventilation intakes that serve an enclosed area; and

(e) Accessibility ramps.

(4) 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 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 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.

(5) 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.

(6) The following areas are not required to be smokefree:

(a) Smoke shops that are certified by the Authority under OAR 333-015-0068;

(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 be in compliance with the rules set forth in OAR 333-015-0035(4).

(7) The medical use of marijuana is permitted in the place of employment of a licensee of a professional licensing board as described in ORS 475.328.

(8) 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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2010, f. & cert. ef. 1-14-10; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0040

Signs

(1) An employer or entity in charge, except in those places described in OAR 333-015-0035(5) and (6), shall post signs prohibiting smoking, aerosolizing or vaporizing of inhalants. Nothing in these rules shall prevent an employer 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. Signs may be used without specifically including the words "within 10 feet" if the signs specify a restriction greater than 10 feet or designate the entire premises as smoke, aerosol or vapor free. Signs shall be posted prominently at each entrance and exit to the place of employment or public place.

(2) 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(4).

(3) An owner 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.

(4) In a cigar bar where smoking is allowed under OAR 333-015-0035(6), 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.

(5) In a smoke shop where smoking is allowed under OAR 333-015-0035(6), 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) Anyone under the age of 18 is prohibited from entering the premises; and

(c) Cigarette smoking is prohibited on the premises, in smoke shops where cigarette smoking is not allowed under OAR 333-015-0068(7)(e).

(d) Smoking, aerosolizing or vaporizing of inhalants that are not tobacco products is prohibited. (6) 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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 18-2008, f. 11-14-08, cert. ef. 1-1-09; PH 2-2010, f. & cert. ef. 1-14-10; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0045

Ashtrays

(1) Ashtrays and any receptacles to be used for smoking, aerosolizing or vaporizing or 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(6), ashtrays and any receptacles to be used for smoking or depositing cigarette or inhalant delivery system debris are prohibited inside public places and places of employment.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: HD 10-1983, f. & ef. 7-1-83; OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0062

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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 12-2008, f. 8-15-08, cert. ef. 1-1-09

333-015-0064

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 as defined in OAR 333-015-0030(8); 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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0066

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 or 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 official form provided by the Public Health Division, Tobacco Prevention and Education Program, proof that all employees have read and signed a document explaining the dangers of exposure to secondhand smoke (this form is available at www.healthoregon.org/smokefree 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 and prohibit an applicant from reapplying for up to two years if the applicant provides information that is false or deliberately misleading.

(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 because it has gone out of business. The certificate holder must notify the Authority that the cigar bar is no longer in operation within 30 days of closing the business.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12

333-015-0068

Smoke Shops

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

(2) A business must apply for smoke shop certification on a form prescribed by the Authority (this form is available at www.healthoregon.org/smokefree or by calling the Tobacco Prevention and Education Program at 971-673-0984).

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

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

(5) Certification Criteria:

(a) A business may apply for smoke shop certification by submitting the following documentation to the Authority, along with a completed application form:

(A) 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 18 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, beverages or alcoholic beverages. On-premises consumption of food or beverages, excluding alcoholic beverages is permitted;

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

(vi) 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 431.840; and

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

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

(C) Evidence, such as photographs, of signs prohibiting:

(i) Persons under 18 years of age from entering the premises, and

(ii) On premises consumption of alcohol.

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

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

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

(b) A business existing on December 31, 2008, may apply for certification as a smoke shop by submitting the following documentation to the Authority, along with a completed application form:

(A) 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;

(B) A notarized, sworn statement attesting that:

(i) 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 18 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. On premises consumption of food and beverages, excluding alcohol, is permitted.

(ii) Presently, the business meets the criteria listed under subparagraph (5)(b)(B)(i) of this rule;

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

(D) 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 (5)(b)(D)(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;

(E) Either of the following:

(i) 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

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

(F) Evidence, such as photographs, of signs prohibiting persons under 18 years of age from entering the premises; and

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

(c) A business that filed an application with the Authority for certification as a smoke shop prior to June 30, 2011, may be certified by the Authority on or before December 31, 2012, according to the requirements of the Act as it was in effect on June 29, 2011. To achieve certification under these criteria, the business must submit the following documentation to the Authority:

(A) A notarized, sworn statement attesting that:

(i) At the time of application, the business:

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

(II) Prohibited persons under 18 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 on-premises consumption of alcoholic beverages; and

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

(ii) Presently, the business meets the criteria listed under subparagraph (5)(c)(A)(i) of this rule;

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

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

(6) Application Review:

(a) The Authority shall review application materials within 45 days of receipt and determine whether the application is complete.

(b) Within 15 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 the business’s compliance with this rule. In lieu of denying an application, the Authority may request additional information from the business for the purpose of assessing compliance with this rule.

(c) The Authority may deny an application for smoke shop 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 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.

(7) Ongoing Requirements for Certification:

(a) A smoke shop certified under this rule must continue to meet the criteria for certification once certified. The Authority may revoke certification if the smoke shop ceases to meet the criteria for certification.

(b) Every year, within 30 days of the calendar date on which certification was originally granted, a smoke shop must provide the Authority with documentation demonstrating that at least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments. Such documentation must include:

(A) A notarized, sworn statement attesting that at least 75 percent of the smoke shop’s gross revenue is derived from the sale of tobacco products or smoking instruments; and

(B) Documentation of the smoke shop’s sales broken down by category of product, including cigarette sales if the business is certified under subsection (5)(b) or (5)(c) of this rule and permits cigarette smoking on the premises.

(c) The Authority may inspect a business’s financial records to determine compliance with the Act and these rules. The Authority shall attempt to contact the business and provide at least 48 hours’ notice prior to conducting such an inspection.

(d) A smoke shop must maintain up-to-date 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, and other contact information are out of date, then the Authority may suspend the smoke shop’s certification until up-to-date contact information is provided.

(e) A smoke shop certified under subsection (5)(b) or (5)(c) of this rule may not allow the smoking of cigarettes unless at least 75 percent of its gross revenue, as reflected in the documentation described in paragraph (7)(b)(B) of this rule, is derived from the sale of cigarettes.

(f) A smoke shop that is closed for an extended period of time or otherwise ceases to operate at the location that is certified is considered by the Authority to not meet certification requirements.

(8) Renewal of Certification:

(a) A smoke shop certified under subsection (5)(b) or (5)(c) of this rule must renew its certification every five years within 30 days of the calendar date on which certification was originally granted.

(b) To renew certification, a smoke shop certified under subsection (5)(b) or (5)(c) of this rule must submit:

(A) Updated versions of the documentation required for initial certification under subsection (5)(b) or (5)(c) of this rule, respectively; and

(B) If the smoke shop allows the smoking of cigarettes, documentation demonstrating that the smoke shop derives at least 75 percent of its gross revenue from the sale of cigarettes.

(9) Transfer of Certification with Ownership:

(a) Smoking is not permitted on the premises of a smoke shop operating under new ownership until certification is effectively transferred from the certificate holder to the new owner in accordance with this section.

(b) If a smoke shop certified under subsection (5)(a) of this rule changes ownership, the following steps must be completed before the Authority shall transfer certification to the new owner:

(A) The certificate holder must notify the Authority of the intent to transfer ownership and certification;

(B) The new owner must submit a notarized, sworn statement to the Authority attesting that the smoke shop will continue to meet the certification requirements under the new ownership; and

(C) The certificate holder or the new owner must update the business’s certification documentation with the Authority.

(c) If a smoke shop certified under subsection (5)(b) or (5)(c) of this rule changes ownership, the certificate holder or new owner of the smoke shop must submit the following documentation to the Authority to transfer certification to the new owner:

(A) Proof of transfer of ownership of the smoke shop, including, where applicable, updated registration with the Oregon Secretary of State, Corporation Division;

(B) A notarized, sworn statement attesting that the business will continue to meet the requirements for certification under the new ownership; and

(C) A completed application for transfer of certification (available on the Internet at www.healthoregon.org/smokefree or by calling the Tobacco Prevention and Education Program at 971-673-0984).

(d) After certification is transferred, the new certificate holder must submit financial documentation, including, but not limited to, sales receipts, demonstrating that at least 75 percent of the smoke shop’s gross revenue during the first 90 days of operation under new ownership was derived from the sale of tobacco products or smoking instruments.

(10) Change of Location:

(a) A smoke shop certified under subsection (5)(a) of this rule that seeks to operate the business at a different location must reapply for certification in the new location.

(b) A smoke shop certified under subsection (5)(b) or (5)(c) of this rule that seeks to operate the business at a different location must submit the following documentation to the Authority, along with a completed application for transfer of certification, at least 30 days prior to permitting smoking at the new location:

(A) 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 unless the original location exceeded 3,500 square feet;

(B) If the new location occupies more than 3,500 square feet, documentation demonstrating that the square footage of the new location is no more than 110 percent of the square footage of the location at which the smoke shop was originally certified;

(C) A notarized, sworn statement attesting that the smoke shop will cease to operate in the old location; and

(D) Documentation demonstrating that the smoke shop, as operated in the new location:

(i) Meets the original requirements for certification set forth in subsection (5)(b) or (5)(c), respectively;

(ii) Does not allow the smoking of cigarettes unless at least 75 percent of the gross revenue of the business is derived from the sale of cigarettes.

(c) Smoking is not permitted on the premises of the new location until the Authority certifies the new location pursuant to subsection (10)(a) or (10)(b) of this rule.

(11) Certification may be revoked if a smoke shop is closed for an extended period of time or ceases operating at the location that is certified. The certificate holder must notify the Authority immediately if the smoke shop is closing for an extended period of time or will no longer be operating.

(12) Certification may be revoked if a smoke shop fails to meet certification requirements or fails to submit required documentation in accordance with subsection (7)(b) of this rule.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0069

Revocation of Cigar Bar and Smoke Shop Certification

The Authority may revoke the certification of a cigar bar or smoke shop and prohibit the business from reapplying for up to two years if the business violates the Act or these rules.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12

333-015-0070

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, provide certification to cigar bars and smoke shops verifying that they have met the definitions and standards for allowing smoking as set forth in ORS 433.835(1) and 433.850(2)(d) and these rules;

(b) Provide education and assistance to employers and entities in charge of public places to help them comply with the Act;

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

(d) Prepare and follow up on remediation plans with sites found to be out of compliance with the Act or these rules; and

(e) Issue citations to violators of the Act or these rules, and conduct contested cases under ORS Chapter 183 as necessary.

(3) Upon request of the LPHA that assumes authority for any or all of the responsibilities pursuant to ORS 433.855(4), provide consultation and technical assistance to the LPHA.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0075

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.

(c) The Authority or the LPHA shall send a form letter to the complainant, if the complainant has supplied his or her name and contact information, notifying the complainant that the complaint has been received and is being investigated or that the place of employment is not required to be smokefree under ORS 433.835 through 433.850.

(2) Second or Subsequent Complaint:

(a) If the Authority or the LPHA receives additional complaint(s) about the site within five business days after the "initial response letter" was sent, the Authority or the LPHA shall send a form letter to the complainant if the complainant has supplied his or her name and contact information, notifying the complainant that the complaint has been received and the investigation process begun.

(b) 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.

(c) An employer, entity in charge of a public place, smoke shop or cigar bar must permit the Authority or the LPHA access to the place of employment, public place (or any portion thereof), or smoke shop or cigar bar, in order to determine compliance with the ICAA. Failure to permit the Authority or LPHA access is a violation and may result in the imposition of civil penalties under OAR 333-015-0085(1).

(3) 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 an extension of time in which to complete the remediation plan. An extension may be granted only by the Public Health Director or designee.

(4) 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 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.

(5) 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. If a violation is found the Authority may impose a civil penalty.

(b) If an additional complaint is received more than three years of the date the remediation plan was entered into 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 (3) and (4) of this rule.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2010, f. & cert. ef. 1-14-10; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0078

Violations

(1) The following are violations of the ICAA:

(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 intended for use 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 proper certification from the Authority.

(f) Operating as a smoke shop without proper 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 intended to be used for smoking 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 or 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 or entity in charge of a public place, a cigar bar or smoke shop to permit the Authority or the LPHA to inspect all or any part of the premises.

(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, ventilation intakes that serve an enclosed area, and accessibility ramps.

(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 by mail to the Public Health Director and credited to the Tobacco Use Reduction Account, as required by ORS 433.855(1)(c).

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

(4) Revocations: The Authority may revoke a smoke shop certification for a substantial violation of any of the prohibitions of OAR 333-015-0078.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

333-015-0080

Public Places which the Oregon Health Authority, Public Health Division 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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12

333-015-0082

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.

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2012, f. & cert. ef. 2-1-12

333-015-0085

Penalties

The Authority may impose a civil penalty of up to $500 per day for each violation 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).

Stat. Auth.: ORS 433.855
Stats. Implemented: ORS 433.835 - 433.870
Hist.: OHD 8-2002(Temp), f. & cert. ef. 5-28-02 thru 11-22-02; OHD 12-2002, f. & cert. ef. 8-27-02; PH 18-2004(Temp), f. & cert. ef. 5-7-04 thru 10-27-04; PH 27-2004, f. & cert. ef. 8-19-04; PH 12-2008, f. 8-15-08, cert. ef. 1-1-09; PH 2-2010, f. & cert. ef. 1-14-10; PH 2-2012, f. & cert. ef. 2-1-12; PH 26-2014, f. & cert. ef. 10-8-14; PH 30-2015, f. 12-29-15, cert. ef. 1-1-16

Oregon Menu Labeling Act

333-015-0100

Authority and Purpose

(1) These rules are adopted pursuant to the authority granted the 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.

Stat. Auth.: ORS 616.575
Stats. Implemented: ORS 616.555 – 616.570
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10; PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; PH 11-2011, f. & cert. ef. 10-27-11

333-015-0105

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0110

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0115

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0120

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0125

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0130

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0135

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0140

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0145

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0150

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0155

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.

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0160

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).

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

333-015-0165

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.”

Stat. Auth.: 2009 OL Ch. 314
Stats. Implemented: 2009 OL Ch. 314
Hist.: PH 17-2009, f. 12-29-09, cert. ef. 1-1-10

Tobacco and Inhalant Delivery Systems Sales to Minors

333-015-0200

Definitions

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

(2) "Block Grant" means the Substance Abuse Prevention and Treatment Block Grant pursuant to 42 USC 300x21e et seq.

(3)(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.

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

(5) "Outlet" means any location which sells at retail or otherwise distributes tobacco products or inhalant delivery systems to consumers including, but not limited to, locations that sell such products over the counter or through vending machines.

(6) "Secretary" means the Secretary of the United States Department of Health and Human Services.

(7) "Smoking Instrument" means any cigar, cigarette, pipe or other instrument used to smoke tobacco, marijuana, cocaine or other inhalant as defined in ORS 433.835 and ORS 163.575.

(8) "Tobacco Product" means 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, 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, and cigarettes as defined in ORS 431.840(2).

(9) "Vending Machine" means a mechanical, electronic or similar device that, upon the insertion of tokens, money or another form of payment, dispense tobacco products or inhalant delivery systems as defined in ORS 167.402.

Stat. Auth.: ORS 431.853
Stats. Implemented: ORS 431.853
Hist.: PH 32-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

333-015-0205

Notice Posting Requirement

(1) An outlet must post a notice substantially similar to the notice described in section (2) of this rule in a location that is clearly visible to the seller and the purchaser.

(2) Content of the Notice: NOTICE: The sale of tobacco products, smoking instruments and inhalant delivery systems to persons under 18 years of age is prohibited by law. Any person who sells, or allows to be sold, a tobacco product, smoking instrument or inhalant delivery system to a person under 18 years of age is in violation of Oregon law.

(3) The Authority may impose a civil penalty for each violation of this rule that is not less than $250 or more than $1,000.

Stat. Auth.: ORS 431.840, 431.845
Stats. Implemented: 431.840, 431.845
Hist.: PH 32-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

333-015-0210

Location of Tobacco Products Within a Retail Store

(1) A person having authority over the location of tobacco products, smoking instruments or inhalant delivery systems in a retail store may not locate the tobacco products, smoking instruments or inhalant delivery systems in a location where the tobacco products or inhalant delivery systems are accessible by store customers without assistance by a store employee.

(2) This rule does not apply to a person if the location at which the tobacco products, smoking instruments or inhalant delivery systems are sold is a store or other establishment at which persons under 18 years of age are prohibited.

Stat. Auth.: ORS 163.575, 167.400, 167.402, 167.407, 431.840, 431.853
Stats. Implemented: ORS 431.853
Hist.: PH 32-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

333-015-0215

Enforcement

(1) The Authority shall coordinate with law enforcement agencies to conduct random, unannounced inspections of wholesalers and retailers of tobacco products, smoking instruments or inhalant delivery systems to ensure compliance with, and to enforce, the laws of this state designed to discourage the sale of tobacco products, smoking instruments and inhalant delivery systems to minors. Nothing in these rules shall preempt local jurisdictions from passing ordinances to conduct unannounced inspections.

(2) Random Sample Procedures: Random, unannounced inspections will be based on the following methodological procedures:

(a) Cover a range of outlets, not to be preselected on the basis of prior violations, to measure overall levels of compliance as well as to identify violations;

(b) Be conducted in such a way as to provide a probability sample of outlets in order to estimate the success of enforcement actions being taken throughout the state;

(c) Use reliable methodological design and adequate sample design to reflect:

(A) Distribution of the population of those under 18 throughout the state; and

(B) Distribution of outlets throughout the state that are accessible to minors; and

(d) Be conducted at times when minors are likely to purchase tobacco products, smoking devices or inhalant delivery systems.

(3) Targeted Inspections: The Authority may conduct targeted inspections of outlets where a compliance problem exists or is suspected. Information gained in targeted inspections will not be included in data used to determine rate of offense in random inspections.

(4) Conducting Inspections: Inspections may take place:

(a) Only in areas open to the public;

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

(c) No more frequently than once a month in any single outlet unless a compliance problem exists or is suspected. For purposes of this rule, a "single outlet" refers to a specific address location of an outlet, regardless of ownership.

(5) The Authority may use minors to complete inspections to determine compliance with these rules.

Stat. Auth.: ORS 431.853
Stats. Implemented: ORS 431.853
Hist.: PH 32-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

333-015-0220

Annual Report

(1) Contents of Report: The Authority will annually submit a report to the Oregon Legislature and to the Secretary, along with the state's application for block grant funding. The report will include:

(a) A description of the state's activities to enforce the laws described in these rules during the fiscal year preceding the fiscal year for which the state is seeking the grant;

(b) A description outlining the overall success the state has achieved during the previous fiscal year in reducing the availability of tobacco products, smoking instruments and inhalant delivery systems to individuals under the age of 18, showing:

(A) Results of the random and targeted unannounced inspections;

(B) Results of over-the-counter and vending machine outlet inspections reported separately;

(c) A description of how the unannounced inspections were conducted and the methods used to identify outlets; and

(d) Strategies to be utilized by the state for enforcing such laws during the fiscal year for which the grant is sought.

(2) Public Comment Required: The annual report shall be made public and public comment shall be obtained and considered before submitting the report to the Secretary.

Stat. Auth.: ORS 431.853
Stats. Implemented: ORS 431.853
Hist.: PH 32-2015(Temp), f. 12-29-15, cert. ef. 1-1-16 thru 6-28-16

The official copy of an Oregon Administrative Rule is contained in the Administrative Order filed at the Archives Division, 800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the published version are satisfied in favor of the Administrative Order. The Oregon Administrative Rules and the Oregon Bulletin are copyrighted by the Oregon Secretary of State. Terms and Conditions of Use