The ban on mailing vapor products through the United States Postal Service (USPS) takes effect tomorrow. After more than six months, the USPS has finally posted for public inspection its rules for mailing e-cigarettes with the Federal Register. The rules will publish tomorrow, Oct. 21, and go into effect immediately.
There is not an exemption for any vaping cannabis products, as many in the industry had hoped. The USPS is leaving it up to the U.S. Congress to carve out an exemption for hemp-based vaping products. The rules were originally set to go into effect in March and then April, however, the USPS held back publishing the rule while it went under agency review.
The rule states that Congress’s use of “nicotine” in the term “electronic nicotine delivery systems,” makes clear that “nonmailable ENDS products include those containing or used with not only nicotine, but also ‘flavor[s]’ or any other substance … It goes without saying that marijuana, hemp, and their derivatives are substances,” the rule states. “Hence, to the extent that they may be delivered to an inhaling user through an aerosolized solution, they and the related delivery systems, parts, components, liquids, and accessories clearly fall within the [Preventing Online Sales of E-Cigarettes to Children Act’s] scope.
“Conversely, THC-containing substances that are excluded from the [Controlled Substances Act] CSA—that is, hemp and hemp derivatives with no more than 0.3 percent THC by dry weight—are not subject to CSA-based mailability restrictions, and items used with such substances (and not with controlled substances) may fall outside the definition of drug paraphernalia … As such, those substances continue to be mailable generally, to the extent that they are not incorporated into an ENDS product or function as a component of one. To the extent that they do comprise or relate to an ENDS product, however, then that product is now nonmailable under the PACT Act and POSECCA, except pursuant to a PACT Act exception.”
UPS and FedEx already have bans in place for vaping products. Many in the industry have also moved on to new ways of mailing vaping products to customers through third-party shippers. Numerous other companies have since gone out of business since the U.S. Food and Drug Administration started sending out marketing denial orders (MDOs) last month.
When a 5,000-plus page omnibus bill, the Consolidated Appropriations Act of 2021, was signed into law on Dec. 28, 2020, buried deep within the bill (page 5,136) was the Preventing Online Sales of E-cigarettes to Children (PACT) Act. It was a provision that effectively bans the USPS from shipping ENDS products.
Retail customers will no longer be able to receive vaping products by way of USPS delivery, according to the USPS. However, the USPS rule states that the agency will mail vapor products under narrowly defined circumstances:
- Noncontiguous states: intrastate shipments within Alaska or Hawaii;
- Business/regulatory purposes: shipments transmitted between verified and authorized tobacco industry businesses for business purposes, or between such businesses and federal or state agencies for regulatory purposes;
- Certain individuals: lightweight shipments mailed between adult individuals, limited to 10 per 30-day period;
- Consumer testing: limited shipments of cigarettes sent by verified and authorized manufacturers to adult smokers for consumer testing purposes; and
- Public health: limited shipments by federal agencies for public health purposes under similar rules applied to manufacturers conducting consumer testing.
The USPS rules also state that the listed exceptions cannot feasibly be applied to inbound or outbound international mail, mail to or from the Freely Associated States, or mail presented at overseas Army Post Office, Fleet Post Office, or Diplomatic Post Office locations and destined to addresses in the United States. Because of this inability, all ENDS products “in such mail are nonmailable, without exception.”
Excluded from the statutory definition are products approved by the FDA for sale as “tobacco cessation products or for other therapeutic purposes and marketed and sold solely for such purposes.” The USPS also proposes to treat ENDS as a standalone category, “albeit one generally subject to the same restrictions and exceptions as cigarettes, consistent with the statute.”
According to the PACT Act legislation, anyone selling vaping products must:
- Register with the U.S. Attorney General;
- Verify age of customers using a commercially available database;
- Use private shipping services that collect an adult signature at the point of delivery;
- Register with the federal government and with the tobacco tax administrators of the states if selling in states that tax vaping products;
- Collect all applicable local and state taxes, and affix any required tax stamps to the products sold;
- Send each taxing state’s tax administrator a list of all transactions with customers in their state, including the names and addresses of each customer sold to and the quantities and type of each product sold; and
- Maintain records for five years of any “delivery interrupted because the carrier or service determines or has reason to believe that the person ordering the delivery is in violation of the [PACT Act].”
Retailers can be cited by states for not following their individual requirements for tax payments and filings, and they may have to purchase tobacco and other licenses or hire a registered agent in the state. The cost for being PACT Act compliant can range anywhere from $40 to $250 or more per year per state, according to previous news reports.
This story will be updated as the published rules are reviewed