Public Health_333

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The Oregon Administrative Rules contain OARs filed through January 15, 2010

DEPARTMENT OF HUMAN SERVICES, PUBLIC HEALTH DIVISION

DIVISION 15

IMPLEMENTATION OF REQUIREMENTS FOR SMOKEFREE ENVIRONMENTS IN
WORKPLACES AND PUBLIC PLACES AND FOR NUTRITIONAL
INFORMATION AT CHAIN RESTAURANTS

333-015-0025

Authority and Purpose

(1) These rules are adopted pursuant to the authority granted the Department of Human Services, 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 to persons caused 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

333-015-0030

Definitions

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

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

(2) “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 of all other tobacco products in any form that includes, but is not limited to, loose tobacco, pipe tobacco, cigarettes as defined in ORS 323.010, and cigarillos as defined by OAR 333-015-0030(3);

(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 is certified by the assistant to the State Fire Marshal described in ORS 476.060 for the jurisdiction in which the cigar bar is located as adequate to remove the cigar smoke in the cigar bar and vents the smoke from the cigar bar in a manner that prevents the smoke from entering any other establishment; and

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

(3) “Cigarillos” means a smoking device wrapped in tobacco leaf, rather than paper, containing less than three grams of tobacco and measuring less than 100 mm in length.

(4) “DHS” means the Department of Human Services.

(5) "Employer" means any entity or individual who engages an individual to perform work or services in an enclosed area under the control of said employer.

(6) "Enclosed area" means all space between a floor and a ceiling that is enclosed on three or more sides by permanent or temporary walls or windows, exclusive of doors or passageways, that extend from the floor to the ceiling.

(7) “Entity in charge of a public place” means any person or organization that has responsibility because of ownership, proprietorship, management, or oversight of a place that is open to the public. An entity in charge of a public place is used to refer to those instances where the person or organization in charge is not an employer.

(8) “Entrance” means any point of entry to premises whereby a person gains access to the interior of enclosed space from the exterior of outdoor space.

(9) “Exit” means any point on a premises whereby a person gains access to the exterior of an enclosed space from the interior of an indoor space.

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

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

(12) “Local Public Health Authority” 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.

(13) “Maximum seating capacity” means the total number of seats available to patrons including bar stools, seating at cocktail tables, seats at buddy-bar tables, banquette seating, and dining seating.

(14) “Noncommercial tobacco products” means unprocessed tobacco plants or tobacco by-products used for ceremonial or spiritual purposes by American Indians.

(15) “PHD” means the Public Health Division of the Department of Human Services.

(16) “Place of employment” means every enclosed area under the control of a public or private employer that employees frequent during the course of employment that includes, but is not limited to, work areas, employee lounges, rest rooms, conference rooms, classrooms, cafeterias, hallways, and work vehicles that are not operated exclusively by one employee. 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.

(17) “Private residence” means a residence or part of a residence that is not used 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 will be subject to 433.835 through 433.875.

(18) “Public place” means any enclosed area open to the public.

(19) “Temporary walls” means walls not intended to be permanent including walls constructed of non-permanent material that includes, but is not limited to, plastic, mesh or other screening materials, slats, louvered blinds, fabric, or blankets.

(20) "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.

(21) "Smoking instrument" means any cigar, cigarette, pipe, or other smoking equipment.

(22) “Smoke shop” means a business that:

(a) Is primarily engaged in the sale of tobacco with at least 75 percent of gross revenues resulting from tobacco sales in every fiscal year;

(b) Prohibits persons under 18 years of age from entering the premises;

(d) Does not sell or offer on-premises consumption of alcoholic beverages; and

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

(23) “Wall” means any architectural partition with a height and length greater than its thickness, used to divide or enclose an area or to support another structure.

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

333-015-0035

General Provision

(1) No person shall smoke or carry any lighted smoking instrument in a public place except in those areas that are not required to be smokefree pursuant to ORS 433.850(2) and OAR 333-015-0035(6) and (8).

(2) Employers shall provide a place of employment that is free of tobacco smoke for all employees, except in those areas listed in ORS 433.850(2) and in OAR 333-015-0035(5), (6) and (8).

(3) No person shall smoke or carry any lighted smoking instrument within 10 feet of the following parts of public places or places of employment:

(a) Entrances;

(b) Exits;

(d) Ventilation intakes that serve an enclosed area;

(e) A service line or within 10 feet of a service line that extends an entrance.

(4) Smoking shall be prohibited within 10 feet of an accessibility ramp that extends beyond 10 feet from the entrance or exit.

(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 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 permitted, all smoking rooms on the same floor must be contiguous. The status of the rooms may not be changed, except to add more nonsmoking 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 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. Signage shall notify all patrons that smoking 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 occurring in non-smoking areas or rooms.

(e) Nothing in these rules shall prevent the owner or entity in charge of a hotel or motel from prohibiting smoking 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) Smoking is prohibited in a room during the time that jurors are required to use the room.

(a) All jury rooms shall be posted prominently with “No Smoking” signs having letters no less than one inch in height.

(b) Nothing in this section is intended to allow smoking in a jury room when it would otherwise be prohibited by ORS 433.850 through 433.875.

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

(a) Smoke shops meeting the definition set forth in OAR 333-015-0030(22);

(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(5)

(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 smokefree.

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

333-015-0040

Signs

(1) An employer or entity in charge, except in those places described in OAR 333-015-0035(6) and (8), shall post signs prohibiting smoking. Signs shall use either the "no smoking" symbol (a cigarette with a diagonal slash through it within a circle) and the words “within 10 feet,” or the words "No Smoking within 10 feet," or both. Nothing in these rules shall prevent an employer from increasing the amount of property where smoking is prohibited beyond the 10 foot requirement or from designating the entire premises as smokefree. Signage may be used without specifically including the words “within 10 feet” if the signage specifies some other restriction greater than 10 feet or designates the entire premises as smokefree. 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(5).

(3) An owner or entity in charge of tables or outdoor seating or dining areas within 10 feet of entrances, exits, windows that open, or ventilation intakes that serve an enclosed area of any public place or workplace shall clearly mark the tables or outdoor seating or dining areas as non-smoking with signs that use either the "no smoking" symbol (a cigarette with a diagonal slash through it within a circle), the words “No Smoking,” or both.

(4) In a cigar bar or smoke shop where smoking is allowed under OAR 333-015-0035(8), the employer or entity in charge shall post signage at each entrance and exit to clearly state that smoking is allowed in all or some of the premises, and that anyone under the age of 21 for cigar bars and under the age of 18 for smoke shops is prohibited from entering the premises.

(5) 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.

333-015-0045

Ashtrays

Except for those areas described in OAR 333-015-0035(5) and (7), ashtrays or any receptacles to be used for smoking or depositing cigarette debris are prohibited inside a public place, a place of employment, and within 10 feet of entrances, exits, accessibility ramps that extend beyond 10 feet from an entrance or exit, windows that open, and ventilation intakes that serve an enclosed area of any public place or workplace.

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 12-2=002, 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

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 area if that area is:

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

(b) Not, at any time, an enclosed area as defined in OAR 333-015-0030(6); and

(2) Nothing in these rules shall prevent an employer from increasing the amount of property where smoking 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

333-015-0066

Cigar Bars

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

(2) A business must apply for certification on a form prescribed by DHS and the following information or documentation must be included:

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

(b) A site-map of the premises including a detailed seating capacity chart;

(c) Certification from the assistant to the State Fire Marshal for the jurisdiction where the cigar bar is located that the cigar bar’s ventilation system is adequate to remove the cigar smoke in the cigar bar and prevent the smoke from entering any other establishment;

(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 on the Internet at www.healthoregon.org/tobacco or by calling the Public Health Division, Tobacco Prevention and Education Program; and

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

(3) DHS shall review application materials within 30 days of receipt and shall determine whether the application is complete.

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

(5) DHS may permanently deny the application for cigar bar certification if an applicant provides information that is false or deliberately misleading.

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

333-015-0068

Smoke Shops

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

(2) A business must apply for certification on a form prescribed by DHS (this form is available on the Internet at www.healthoregon.org/tobacco or by calling the Public Health Division, Tobacco Prevention and Education Program) and the following information or documentation must be included:

(a) 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; and

(b) Documentation, including written descriptions or visual aids, demonstrating that the smoke shop is a stand-alone business with no other businesses or residential property attached to the premises.

(3) DHS shall review application materials within 30 days of receipt and shall determine whether the application is complete.

(5) DHS may permanently deny the application for smoke shop certification if an applicant provides information that is false or deliberately misleading.

(6) Every year, within 30 calendar days from the date certification was originally granted, a smoke shop must provide DHS 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.

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

333-015-0069

Revocation of Cigar Bar and Smoke Shop Certification

DHS may revoke the certification of a cigar bar or smoke shop for up to one year for a violation of ORS 433.835 through 433.875 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

333-015-0070

Enforcement

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

(2) DHS shall:

(a) Provide signs and posters at no cost to businesses and the public;

(b) 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 ORS 433.850(2)(d) and these rules;

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

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

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

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

(3) On written agreement with DHS, a county or Local Public Health Authority (LPHA) may assume any or all of the responsibilities outlined in section (2) of this rule. In such cases, DHS will, upon request of the LPHA, be available for consultation and technical assistance with enforcement procedures.

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

333-015-0075

Complaint Response

DHS or the LPHA shall respond to complaints as follows:

(1) Initial complaint:

(a) DHS or the LPHA shall assess whether the site in question is required to be smokefree under the provisions of ORS 433.835 through 433.850.

(b) If DHS or the LPHA determines that the place of employment (or some portion) or public place is required to be smokefree, DHS 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 has been reported as being in violation of the Act or these rules, educational materials about how to comply with the Act and these rules, and information on whom to contact for further information and assistance in compliance.

(c) DHS or the LPHA shall send a form letter to the complainant, if the complainant has supplied their name and contact information, notifying them that the complaint has been received and is being investigated, or that the workplace is not required to be smokefree under ORS 433.835 through 433.850.

(2) Second or subsequent complaint:

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

(b) If DHS 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 DHS 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) Failure of an employer or entity in charge to permit DHS or the LPHA access to the place of employment or public place is a violation and may result in the imposition of civil penalties, or other action under sections (5) and (6) of this rule. If an employer or entity in charge does not permit access for a site visit, DHS or the LPHA shall notify the Assistant Director of the Public Health Division or designee for further enforcement activity.

(3) Finding of violation:

(a) A violation of indoor smoking prohibitions is deemed to have occurred if during a site visit pursuant to a second or subsequent complaint, the DHS or LPHA representative:

(A) Observes any person smoking or carrying a lighted smoking instrument in an area where smoking is prohibited;

(B) Observes cigar or cigarette butts in an area where smoking is prohibited;

(D) Observes no signs or insufficient signs as required under these rules;

(E) Determines that a cigar bar does not have proper certification from DHS;

(F) Determines that a smoke shop that allows smoking does not have proper certification from DHS;

(G) Observes the smoking of non-cigar tobacco products in a cigar bar;

(H) Observes smoking instruments intended for use in an area where smoking is prohibited; or

(I) Obtains signed written statements from at least two individuals who have personally witnessed smoking, the carrying of a lighted smoking instrument, or the smoking of a prohibited tobacco product at a time and in an area where smoking is prohibited.

(b) A violation of outdoor smoking prohibitions is deemed to have occurred if during a site visit pursuant to a second or subsequent complaint, DHS or the LPHA representative:

(A) Observes any person smoking or carrying a lighted smoking instrument within 10 feet of entrances, exits, accessibility ramps that extend beyond 10 feet from an entrance or exit, windows that open, or ventilation intakes that serve an enclosed area of any public place or workplace;

(B) Observes ashtrays intended to be used for smoking within 10 feet of entrances, exits, accessibility ramps that extend beyond 10 feet from an entrance or exit, windows that open, or ventilation intakes that serve an enclosed area of any public place or workplace; or

(C) Observes tables or outdoor seating or dining areas within 10 feet of entrances, exits, windows that open, or ventilation intakes that serve an enclosed area of any public place or workplace that are not clearly marked as nonsmoking.

(4) Remediation plan:

(a) After a finding of violation, DHS or the LPHA representative and the employer or entity in charge will jointly develop a remediation plan. All remediation plans must be completed within 15 days of the site visit.

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

(c) A DHS or LPHA representative shall make a follow-up visit within 30 days of the remediation plan completion date to confirm completion.

(d) If an employer or entity in charge does not cooperate in developing a remediation plan, DHS or the LPHA shall notify the Assistant Director of the Public Health Division or designee for further enforcement activity.

(e) If additional complaint(s) are received within three years after the date DHS or the LPHA confirmed completion of the remediation plan, a representative of DHS or the LPHA shall make an unannounced post-completed remediation plan visit within 15 business days of complaint receipt, to determine whether the employer or entity in charge is in violation of the Act or these rules. If a violation is found, the matter will be referred for enforcement under section (5) of this rule.

(f) If an additional complaint is received more than three years from the date DHS or the LPHA confirmed completion of the remediation plan, and no other complaints were received in that three year period, a representative of DHS or the LPHA shall make an unannounced site visit within 30 days of complaint receipt to determine whether the employer or entity in charge is in violation of the Act or these rules. If a violation is found, a remediation plan will be developed under section (4) of this rule.

(5) Notice of violation:

(a) If, during the follow-up visit or the post-completed remediation plan visit, DHS or the LPHA representative finds that the remediation plan has not been completed or finds additional evidence of violations, DHS or the LPHA shall notify the Assistant Director of the Public Health Division or designee for further enforcement activity.

(b) Once notified under subsection (2)(c), (4)(d), (4)(e) or (5)(a) of this rule, the Assistant Director of the Public Health Division or designee shall issue a notice of violation and, if applicable, notice of intent to impose civil penalties to the employer or entity in charge of a public place. Such notices shall comply with the notice and civil penalty provision in ORS Chapter 183 and OAR 333-015-0085.

(c) The notice of violation and notice of intent to impose civil penalty forms shall be provided by DHS. This form shall be used for all citations.

(d) The citation shall be personally delivered to the employer or entity in charge of a public place or mailed to the place of employment or the address of the entity in charge of a public place by both first class mail and certified mail, return receipt requested.

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

(6) Failure to cooperate:

(a) In addition to assessing fines under OAR 333-015-0075(5) above, the Assistant Director of the Public Health Division may initiate further legal action against an employer or entity in charge of a public place that includes, but is not limited to, requesting an injunction from a court to enjoin operation of the business or public place if the employer or entity in charge of a public place has:

(A) Refused to allow an on-site visit to assess status of compliance;

(B) Refused to cooperate in the development of a remediation plan;

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

333-015-0080

Public Places which the DHS-HS Regularly Inspects

If, in public places that DHS regularly inspects and that are required to be smokefree under these rules, the DHS 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 DHS.

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 they may report the possible violation to DHS.

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

333-015-0085

Penalties

Each violation of the Act or these rules shall be punishable by a fine up to $500 each day the workplace or public place is found to be out of compliance, not to exceed $2000 in any 30-day period, according to the following schedule:

(1) Violations described in OAR 333-015-0075(3)(a)(A), (C), (E), (F), and (G) shall be punishable by a fine of $500 for the first violation and for each subsequent violation.

(2) Violations described in OAR 333-015-0075(3)(a)(B), (D), (H), (I) and (3)(b)(A), (B), and (C) shall be punishable by a fine of $300 for the first violation, $400 for the second violation, and $500 for the third and any subsequent violations.

333-015-0090

Effective Date

January 1, 2009.

Stat. Auth.: ORS 433.855
Stats. Implemented: OL 2007, Ch. 602
Hist.: 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

Oregon Menu Labeling Act

333-015-0100

Authority and Purpose

(1) These rules are adopted pursuant to the authority granted the Department of Human Services, Public Health Division in 2009 Oregon Laws, chapter 314 (House Bill 2726 Section 4 (1)).

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

333-015-0105

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;

(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;

(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;

(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;

(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

(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.

(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.”

(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.

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;

(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

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