Letter: Antitrust Concerns for FedEx’s Vapor Mail Ban

More than 400 owners of independent vape shops are urging FedEx to reverse its rule banning the shipment of vapor products. A letter drafted by Greg Conley, president of the American Vaping Association (AVA), to FedEx Chairman and CEO Fredrick Smith, states that the shipping ban is a “misguided and unnecessary” policy that prevents combustible smokers from access to lower-risk products that could help them quit smoking. The signatories include representatives from every facet of the vaping industry.

“It also threatens thousands of small businesses like ours, which rely on common carriers like FedEx to ship the lifesaving products we stock every day,” the letter states. “Please reconsider this disastrous decision, which will perpetuate another generation of smoking-related deaths – especially among underprivileged communities.”

The letter also accuses FedEx of continuing to ship vapor products for a select few large vaping industry manufacturers. The letter claims that FedEx is “picking winners and losers” in the vaping industry, calling the practice discriminatory against small businesses and raises serious antitrust concerns.

“In addition to the hypocrisy, antitrust concerns, and blatant negative impact on marginalized communities, we can’t help but also notice an inconsistency in shipment policies of companies like yours. For example, it struck us as ironic that FedEx banned the shipment of our legal, lifesaving, and regulated products, yet they are failing to identify and stop the company’s own shipment of illegal pharmaceuticals – products that have proven to have disastrous consequences on our country,” the letter states. “Also, while we as a group do not express a position on the Second Amendment, it does seem odd that you continue to ship firearms yet are prohibiting us from stocking our store shelves with legal products.”

The U.S. Congress imposed new limitations on the shipment of electronic nicotine delivery systems (ENDS) through the United States Postal Service (USPS) by including ENDS products in an updated provision to the 2009 Prevent All Cigarette Trafficking (PACT) Act. ENDS would now be subject to the same shipping laws as combustible tobacco.

The PACT Act has historically exempted business-to-business deliveries from the USPS ban. Specifically, the USPS ban does not extend to tobacco products mailed only for business purposes between legally operating businesses that have all applicable state and federal government licenses or permits and are engaged in tobacco product manufacturing, distribution, wholesale, export, import, testing, investigation or research.

While the legislation was geared toward nicotine vaping products, the law is so broadly defined that cannabis businesses must also comply. This means marijuana and CBD companies selling, manufacturing or shipping vaporizers or associated parts across state lines are required to comply with the provisions of the PACT Act.

FedEx regulations are harsher than those mandated by Congress. The company has prohibited the shipment of all vaping products to both businesses and adult consumers. The letter states that the FedEx regulations would have a greater impact on small businesses than on large companies who have sophisticated distribution networks.

“Because most vape retailers are small mom-and-pop shops, they do not have the ability to build in-house distribution networks like those utilized by big tobacco companies,” the letter states. “As a result, the consequences of this decision are largely being borne by small, independent vape shops and our customers. We rely on companies like FedEx to stock our store shelves and meet customer demand. These restrictions will inevitably result in unintended, but severe, consequences for us, our businesses, our families, former cigarette smokers, and those trying to quit smoking around the country.”