Vaping Laws in Delaware – Is it Legal to Vape in Delaware?

Vaping Laws in Delaware

Delaware has carved out a reputation for having some of the most stringent and proactively enforced vaping regulations in the United States. Driven by a strong commitment to public health, particularly the prevention of youth access to and use of nicotine products, the First State has implemented a multi-layered system of laws. This framework encompasses a strict minimum age for purchase, a pioneering and comprehensive ban on flavored vaping products, specific taxation policies, extensive public use prohibitions, and rigorous retailer licensing and sales requirements.

As of 2025, with new legislative proposals like House Bill 215 (HB 215) suggesting further tax increases and Senate Bill 77 (SB 77) aiming to establish a product directory, understanding these multifaceted laws is crucial for consumers, retailers, and manufacturers. This guide provides an in-depth look at Delaware’s current vaping laws, helping you navigate this tightly controlled regulatory landscape with clarity.

At the core of Delaware’s approach to vaping is a clear definition of what constitutes a regulated product and, critically, who can legally purchase and use it.

Is Vaping Legal in Delaware?

Yes, vaping and the use of e-cigarettes is legal for adults over 21 in Delaware. Those under 21 are prohibited from purchasing or possessing any vape devices or e-liquids.

Defining “Tobacco Substitute” and “Electronic Smoking Device”

Delaware law provides clear definitions to ensure comprehensive regulatory coverage. A “tobacco substitute” is defined to include electronic smoking devices that employ heating elements, batteries, or circuits to produce vapor for inhalation, regardless of nicotine content. An “Electronic Smoking Device” (ESD), as per Delaware Code Annotated (Del. Code Ann.) title 16, section 2902(3), encompasses any product containing or delivering nicotine or similar substances for human consumption that simulates smoking through vapor or aerosol inhalation. This includes e-cigarettes, e-cigars, e-pipes, e-hookahs, and vape pens. “Vapor products,” specifically nicotine liquid solutions, are also defined for taxation purposes under Del. Code Ann. title 30, section 5301(20). These broad definitions ensure that a wide range of vaping devices and consumables fall under state regulatory control.

Delaware firmly enforces a minimum legal sales age of 21 for all tobacco products, which explicitly includes all e-cigarettes, vapor products, and e-liquids. This “Tobacco 21” standard, effective since July 2019, aligns Delaware with federal legislation aimed at curbing youth nicotine initiation. Retailers are legally mandated to verify the age of any purchaser appearing to be under 30 years old by checking a valid government-issued photographic identification.

Selling, distributing, or even furnishing a vapor product to anyone under 21 is a serious offense. Penalties for retailers are substantial and escalate with subsequent violations:

  • First offense: Civil penalty of $250.
  • Second offense within a specified period: Civil penalty of $500.
  • Third and subsequent offenses: Civil penalty of $1,000.

Repeat violations can also lead to the suspension of a retailer’s license for up to six months. For individuals under 21, while the primary focus is on preventing sales, possession or purchase can also lead to penalties, often including fines or mandatory participation in cessation programs.

Where is Vaping Prohibited in Delaware

Public Vaping: Where is Vaping Prohibited in Delaware?

Delaware’s Clean Indoor Air Act (Del. Code Ann. title 16, Chapter 29) has been amended to include vapor products, effectively prohibiting vaping in most enclosed public places where traditional smoking is already banned. This comprehensive prohibition includes:

  • Restaurants, bars, and casinos.
  • Public and private workplaces.
  • Malls and retail stores.
  • Government buildings and state-owned parking lots.
  • Schools, licensed family childcare homes, foster homes, and youth camps (including outdoors and during transport).
  • Healthcare facilities.
  • Mass transit vehicles.

An important provision also prohibits vaping in vehicles when any passenger under the age of 16 is present, regardless of whether windows are open. Enforcement of this specific vehicle rule does not allow police to stop a vehicle solely for this violation but can be cited if stopped for another reason.

Exemptions to the indoor ban exist for private residences (unless used for childcare), up to 25% of hotel/motel rooms if designated as smoking/vaping rooms, and vapor establishments that restrict entry to those 21 and older and derive at least 80% of their revenue from vaping products.

The Flavor Ban in Delaware

As of 2025, Delaware has NOT enacted a statewide ban on the sale of flavored e-cigarettes or e-liquids. While legislative proposals to ban flavored vape products were introduced in previous years, these bills ultimately did not pass into law.

This means that, at the state level, retailers in Delaware can legally sell flavored vaping products (fruit, candy, dessert, mint, menthol, etc.) provided they comply with all other applicable state and federal regulations, particularly age restrictions and product standards. This distinguishes Delaware from neighboring states like New Jersey or states like Massachusetts that have implemented comprehensive state-level flavor bans.

However, it is crucial for retailers and consumers to understand that federal FDA regulations still apply. The FDA has its own enforcement policies regarding flavored vaping products. The new SB 77 if passed, would further tie product legality in Delaware to FDA authorization status, which would indirectly impact the availability of many flavored products lacking such authorization.

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Taxation of Vaping Products in Delaware

Delaware imposes an excise tax on e-cigarette and vape products. Currently, this tax is set at $0.05 per fluid milliliter on vapor products, as detailed in Del. Code Ann. title 30, section 5302. This tax is applied to the volume of liquid nicotine or consumable material and is intended to generate revenue and potentially discourage consumption.

However, significant changes are on the horizon with House Bill 215 (H.B. 215), introduced on June 6, 2025. This bill proposes to substantially increase the vapor product tax from $0.05 to $0.25 per milliliter, a fivefold increase. If passed, this new tax rate would take effect on September 1, 2025, and would include a floor tax on existing inventory to prevent stockpiling by retailers. HB 215 also proposes to increase various licensing fees for tobacco and vape retailers and wholesalers.

Sales, Distribution, and Retailer Regulations

The sale and distribution of vaping products in Delaware are subject to rigorous oversight:

  • Retailer Licensing: Retailers must obtain both a general business license and a specific tobacco retailer license to sell vaping products. Current fees include a $75 business license fee (plus $25 per additional location) and a $50 retail tobacco license fee. HB 215 proposes to increase these fees (e.g., retail fee to $100, wholesaler fee from $200 to $400) effective January 2026.
  • No Self-Service Displays & Vending Machine Ban: Self-service displays of vaping products are prohibited except in adult-only facilities where minors are not permitted entry. The sale of tobacco products, including vapor products, from vending machines is strictly prohibited.
  • Online Sales and Delivery Requirements: Delaware has specific and stringent requirements for online and delivery sales of tobacco substitutes and vapor products. Retailers making delivery sales must:
    • Verify the age of purchasers (21+).
    • Provide required disclosures.
    • Meet specific shipping requirements, including obtaining an adult signature upon delivery.
    • Register and report delivered sales with the Department of Finance.
  • Packaging and Safety: Liquid nicotine and gel products must be sold in child-resistant packaging to prevent accidental ingestion by minors, as mandated by Del. Code Ann. title 11, section 1119 (referring to federal standards). Devices cannot be opened, repackaged, or sold in smaller quantities than the manufacturer’s original factory-wrapped packages. Labels must include nicotine content and FDA-mandated health warnings.

Product Directory and Manufacturer Certification (New for 2025/2026)

A significant new regulatory layer is being introduced via Senate Bill 77 (SB 77), which was introduced in March 2025 and is pending in the Senate Health & Social Services Committee. This bill, if enacted, would create additional stringent requirements for electronic smoking devices and vapor products sold in Delaware:

  • State-Maintained Product Directory: SB 77 would prohibit the sale of products not included in an official state-maintained directory.
  • Manufacturer Certification: Manufacturers would be required to certify to the Attorney General that their products comply with federal Premarket Tobacco Product Application (PMTA) requirements (i.e., have FDA marketing authorization or are under active FDA review after a timely PMTA submission).
  • Fees for Directory Inclusion: Annual fees would be imposed for directory inclusion, potentially $250 initially and $100 annually thereafter per product.
  • Surety Bond for Non-Resident Manufacturers: Non-resident manufacturers might be required to post a $25,000 surety bond.
  • Penalties for Non-Compliance: Selling unlisted/uncertified products could result in fines ranging from $500 to $1,500 per product.

This proposed directory system aims to ensure that only products meeting specific federal and state safety and regulatory standards are available for sale, further safeguarding public health and potentially significantly limiting the variety of products on the market if many do not meet these criteria.

Looking for Manufacturer for Your Vape Business?
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ECIGATOR

Ecigator is one of the well-known vape brands spun off from FM Technology Co., Ltd, it’s an ISO-certified disposable vape manufacturer for OEMs, ODMs, and OBM since 2010. The founder team comes from top firms with more than 10 years of experience in the vaping industry and has devoted thousands of hours to providing users with a better and better experience.

CBD and Marijuana Vaping Laws

While the primary focus of these regulations is nicotine vaping, it’s useful to touch upon related areas. Vaping CBD oil is legal in Delaware for adults over 21, but these products are subject to specific conditions. CBD vape products must contain less than 0.3% THC to be legal under both Delaware and federal law. They are also subject to Delaware’s vape tax of $0.05 per milliliter (potentially $0.25/ml if HB 215 passes). Crucially, flavored CBD vape products were encompassed by the 2020 flavor ban, meaning only unflavored CBD vape options are permitted for sale(Part 1 – CBD Vaping). The same public use restrictions (Clean Indoor Air Act) apply to vaping CBD.

As of April 2023, marijuana is legal for both recreational and medical use for adults aged 21 and older in Delaware. This includes the use of marijuana vape products. However, similar to nicotine vaping and CBD vaping, smoking or vaping marijuana in public places is prohibited, and violations can result in a $100 fine. Driving while vaping marijuana or under its influence is strictly illegal.

Conclusion

Delaware has unequivocally established itself as a state with some of the most stringent and comprehensive vaping laws in the United States. By integrating a strict 21+ age limit, a pioneering and broad ban on flavored vaping products, significant taxation (with potential for further substantial increases under HB 215), and extensive public use prohibitions under its Clean Indoor Air Act, the state demonstrates a strong commitment to public health and the prevention of youth nicotine addiction. The proposed introduction of a product directory under SB 77 signals an intent to further tighten market controls by aligning product legality with federal FDA authorization pathways.

For consumers, this means being acutely aware of the age restrictions, the complete absence of legal flavored vape products, and the numerous locations where vaping is prohibited. For retailers and manufacturers, meticulous compliance with licensing, age verification, tax remittance, product certification (if SB 77 passes), and sales practice regulations is paramount to avoid substantial penalties. As these laws continue to be enforced and potentially evolve further, staying informed through official state resources like the Delaware Division of Public Health and the Delaware General Assembly website is crucial for all stakeholders in the First State’s tightly regulated vaping landscape.

References

  1. Ecigator – Vaping Laws in Delaware – Is it Legal to Vape in Delaware?
  2. Dover Air Force Base – New Delaware tobacco law (July 2019)
  3. Delaware General Assembly – Session Laws Volume 82, Chapter 10 (Tobacco 21)
  4. We Card – Delaware New 21 Law Summary (PDF)
  5. Delaware Code Online – Title 16, Chapter 29: Clean Indoor Air Act
  6. Delaware DHR – Tobacco-Free Policy (State Employees)
  7. PMC NCBI – Study on state tobacco 21 laws (General context)
  8. WHYY – Delaware bans indoor smoking of e-cigarettes and vape pens (Oct 2015)
  9. WHYY – Delaware law restricting vaping takes hold (Oct 2015)
  10. Justia Law – Delaware Code § 16-2908 (Vapor establishments exemption)
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