USPS Will No Longer Mail Hemp Vapes

The US Postal Service (USPS) will no longer mail hemp vapes. In a Final Rule regarding “Treatment of E-Cigarettes in the Mail” (Final Rule) published on Thursday, October 21, 2021, the USPS issued its regulations regarding the mailability of vaping devices. Unfortunately, the Final Rule is not good for the hemp industry, at least with respect to mailing vaping products containing hemp extracts and derivatives.

The Final Rule implements the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA) as it relates to mailability of “electronic nicotine delivery systems” (ENDS), which were recently added by Congress to the definition of “cigarettes” under the Jenkins Act. The Final Rule, which is effective immediately, hurts the hemp industry by prohibiting most shipments of ENDS through the USPS. (I should note that shipping any type of non-hemp cannabis product- ie, “marijuana”- through the USPS is already illegal under most circumstances since marijuana is a schedule I controlled substance under federal law.)

Regular readers of our blog know that Congress expanded the definition of ENDS such that it now captures all vaping devices and parts, including ones that do not even contain tobacco or nicotine. Notably, this includes vaping devices containing hemp extracts and derivatives. You can click here and here for a refresher on ENDS, the PACT Act, and new reporting and age-verification requirements for distributors and retailers. Briefly, ENDS products comprise (1) any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device; and (2) any component, liquid, part, or accessory of an ENDS, regardless of whether sold separately from the device. 

In our most recent blog post about mailing ENDS through the USPS, we discussed the likelihood that the USPS would carve out an exception for hemp vape products that do not contain tobacco or nicotine:

The USPS’ recent publication mentions the fact that it has received “numerous inquiries and comments about the possibility of submitting exception applications for ENDS products in advance of the final rule.” … As a side note, we believe that there will likely be some form of an exception for ENDS that contain hemp and/or CBD, provided they do not contain nicotine or tobacco. That, however, is simply an opinion of this firm, and whether there will ultimately be an exception for these products under the PACT Act remains to be seen.

Unfortunately, our optimism was misplaced. Despite receiving a substantial number of comments from the hemp industry before publishing the Final Rule, the USPS ultimately made no accommodations for ENDS containing hemp, stating:

“Neither the PACT Act nor the POSECCA includes any provision authorizing the Postal Service to waive the mailing ban for ENDS products or any other subcategory of “cigarettes,” with or without other regulatory conditions devised by the Postal Service ( e.g., age verification, nicotine limits)….. [H]emp and hemp derivatives with no more than 0.3 percent THC by dry weight—are not subject to CSA-based mailability restrictions… 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.“

This will frustrate hemp businesses that ship vapes since they must now resort to private carriers to deliver their ENDS products. Adding to their difficulty is the fact that many private carriers already refuse to ship ENDS. The Final Rule provides some limited exceptions, including:

• Intra-Alaska and Intra-Hawaii Mailings: Intrastate shipments within Alaska or Hawaii;
• Business/Regulatory Purposes: Shipments 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, noncommercial shipments by adult individuals, limited to 10 shipments 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 of cigarettes by federal agencies for public health purposes under similar rules applied to manufacturers conducting consumer testing.

Outside of these exceptions, the USPS will not accept or send any package that it knows, or has reasonable cause to believe, contains nonmailable ENDS. Furthermore, nonmailable ENDS deposited in the mail are subject to seizure and forfeiture and senders of nonmailable ENDS are subject to criminal fines, imprisonment, and civil penalties.

We have been advising companies for many months on how they can navigate and comply with the new requirements and restrictions on hemp-related ENDS products. We have also created a “PACT Act Resource Guide” regarding ENDS products, which we can provide upon request. Click here to schedule a call with one of our attorneys to discuss your business.

October 22, 2021

Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.