Delaware Code Title 6. Commerce and Trade § 2602. Definitions

(1) “Basic cost of cigarettes” means the invoice cost of cigarettes to the wholesaler, or the replacement cost of cigarettes to the wholesaler (i.e., the cost for which cigarettes could have been bought by the wholesaler at any time within 30 days prior to the date of sale by the wholesaler if bought in the same quantity as the last purchase made by the wholesaler), whichever is lower, plus in-freight charges not otherwise included in invoice or replacement cost, less all trade discounts and the usual and customary 2 percent cash discount, plus the full face value of any cigarette taxes payable on cigarettes sold.

(2) “Cigarettes” includes any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and whether or not such tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material except tobacco.  Cigarettes shall not be construed to include cigars.

(3) “Consumer” means any person who has possession of tobacco products for any purpose other than transportation or sale.

(4) “Cost to the wholesaler” means the basic cost of cigarettes to the wholesaler plus a markup to cover the cost of doing business by the wholesaler, including cartage to the retailer.  In the absence of satisfactory proof of a lesser cost of doing business by any wholesaler, the cost of doing business shall be presumed to be 5 percent of the basic cost of cigarettes to the wholesaler.  Any fractional part of a cent, amounting to 1/10 of a cent or more, in the cost of the wholesaler per carton of 10 packages shall be rounded off to the next higher cent.

(5) “Secretary of Finance” or “Secretary” means the Secretary of Finance or a duly authorized designee;  provided that any such delegation of authority is consistent with Chapter 83 of Title 29.

(6) “Sell,” in addition to its usual meaning, includes to advertise, offer to sell, offer for sale, barter, exchange, transfer, gift or distribution.

(7) “Sell cigarettes at wholesale,” “wholesale sales of cigarettes,” “sales of cigarettes at wholesale,” and similar expressions include any sale whereby cigarettes are sold for a valuable consideration in the ordinary course of trade or in the usual conduct of the seller's business to a retailer (other than a vending machine operator) for the bona fide purpose of resale to the ultimate consumer, and includes any such transfer of cigarettes on consignment or otherwise where title is retained by the seller as security for the payment of the purchase price.

(8) “Vending machine operator” means any person who places 1 or more vending machines owned, leased or operated at locations where cigarettes are sold therefrom.  The owner or lessee of the premises upon which a vending machine is placed shall not be considered the operator of the machine if the owner or lessee does not own or lease the machine and if the sole remuneration therefrom is a flat rental fee or a commission based upon the number or value of tobacco products sold from the machine or a combination of both.

(9) “Wholesaler” means any person who regularly sells tobacco products within this State to others who buy for the purpose of resale to the ultimate consumer or any person who, because of volume of cigarette sale business and other criteria as determined by the manufacturer, has the privilege of buying direct from the manufacturer.