Preventing Youth Access to Tobacco:
Information for Tobacco Retailers

The Delaware Youth Access law prohibits sale of tobacco products to anyone under the age of 18. A copy of the law is available on the website of the Delaware General Assembly.

Important 2009 Changes to Delaware's Tobacco Access Laws

In 2009, the Delaware General Assembly passed House Bill 269 which made changes to Delaware's laws on the sale and distribution of tobacco products. The changes are:

• Section 1116(c) was amended to require clerks or sales associates to demand proof of age from all tobacco customers who are under the age of 27.
• In establishments where persons under the age of 18 are permitted, the sale of tobacco products must be "under the control" of the cashier or other store employee. As defined in section 1119(c), "under the control" means customers cannot readily access the tobacco products without the assistance of a cashier or other employee. A display that holds tobacco products behind locked doors shall be construed as "under the control" of a cashier or other employee. This means that tobacco products cannot be on shelves or displays where a customer can pick up the products.
• The notice required in section 1117 must now be on tobacco vending machines.

The Youth Access Law is enforced by the Department of Safety and Homeland Security, Division of Alcohol and Tobacco Enforcement. Since 2000, tobacco enforcement agents have been distributing educational packets to all tobacco retailers in Delaware. The packet comes in six different languages: Arabic, Hindi, Mandarin Chinese, Korean, Spanish and English.  If you would like to request a packet, please call the Division of Alcohol and Tobacco Enforcement.

What happens if you break the law?

The fine for sale or delivery of tobacco products to a minor, or for providing samples or coupons to a minor, is $250 for the first offense, $500 for a second offense and $1,000 for a third or subsequent offense. A second or subsequent offense is one that occurs within 12 months of a previous offense.

In addition to a fine, upon conviction of a second or subsequent offense, the Court may order the suspension of a license to sell tobacco products for a period not to exceed 6 months.

What can happen to a retail licensee when their employee breaks the law?

The owner, proprietor, franchisee, store manager or other person in charge of the premises is liable for violations committed by their employees.

The law provides an affirmative defense, which may only be used twice in a twelve month period, if the licensee has:

• Adopted and enforces a written policy prohibiting the sale of tobacco products to individuals under 18 years of age
• Informed employee of the law prohibiting the sale of tobacco products to individuals under 18 years of age
• Required employees to sign a form indicating that they have been informed of and understand the written policy
• Required employees to verify age of persons attempting to purchase tobacco products by means of photographic identification; and
• Established and enforced disciplinary sanctions for noncompliance.

Delaware law requires persons engaged in the sale or distribution of tobacco products to demand proof of age from persons attempting to purchase tobacco products. Individuals presented with proof of age that would lead a reasonable person to believe that the individual presenting the identification was 18 years of age or older have an affirmative defense to criminal liability.

Delaware law requires persons engaged in the sale or distribution of tobacco products to display a notice stating that:

• Sale of tobacco products to persons under 18 years of age is illegal
• Purchase by anyone under 18 years of age is illegal
• Violations will be subject to fines; and
• Persons selling tobacco products are required by law to demand proof of age from persons under 27 attempting to purchase tobacco products
• Failure to post the required notice subjects the owner of licensed tobacco retailers to a fine of $100.

Vending Machines, Samples, and Single Sales

Delaware law prohibits the distribution of tobacco products through vending machines in public places with the exception of bars, tobacco shops, and premises in which persons under 18 years of age are prohibited by law from entering. In these locations, the law requires that vending machines be located at least 25 feet from any entrance and be directly visible to the owner or supervisor.

It is illegal for any person to distribute tobacco product samples or coupons for subsequent receipt of free or discounted tobacco products to anyone under the age of 18 years.

Tobacco products can be sold only in sealed packages provided by the manufacturer with the required health warning and tax stamp. It is also illegal to distribute any pack of cigarettes containing fewer than 20 cigarettes.

Tips To Avoid Selling
Tobacco Products To Minors

• Anyone selling tobacco products is required by state law to check ID's of anyone purchasing tobacco products whom the clerk believes to be under 27 years old.  Valid forms of identification include a driver’s license, State ID card, military ID and/or a passport.
• Figure out the date that someone can purchase tobacco products. Take the current year minus 18 years. Example: If the date is November 21, 2009, take 2009 -18 = 1991. You may sell products to anyone with a birthday on November 21, 1991, or before.
• Be prepared to handle situations that may occur. Think about how you will handle them.
• A written note from a parent or other adult to purchase tobacco products is not acceptable. Remind the minor that the person purchasing the tobacco products must be at least 18 years of age and must have ID.
• It is not acceptable for a minor to buy a tobacco product for anyone else. Again, remind them that the person purchasing the tobacco products must be at least 18 years of age and must have ID.
• A minor may try to frustrate the cashier by searching for their ID, saying they are in a hurry, or causing a scene. The cashier may be embarrassed to check ID. Just remember: it’s against the law to sell to a minor – and you could be fined.
• Young cashiers may know an individual or group of students from their school who want to purchase tobacco products. They may tell the cashier that it's cool to sell to them; no one will ever know. An agent may be watching; and state law requires a $250 fine for the first time you sell tobacco products illegally.