Will the USPS Continue to Deliver Vapes?

Will the US Postal Service (USPS) continue to deliver vapes? That is the issue addressed in a document published by the USPS on April 19, 2021, titled: “Treatment of E-Cigarettes in the Mail.” You can read it by clicking here. In its summary section, the document states:

“A forthcoming final rule will determine whether electronic nicotine delivery systems (ENDS) may continue to be mailed pursuant to certain statutory exceptions that are currently administered through an application process.”

The mailability of ENDS is something we have previously covered recently here and here, but for those that are new to the blog or uninitiated, a bit of context may be useful. The Appropriations Act was signed into law on December 27, 2020. It addresses vaping in two sections. The first section amends an existing law regarding online sales of e-cigarettes to children in several important ways. The second section placed significant restrictions on mailing vape products.

On February 19, 2021, the USPS published a notice of rulemaking to amend Publication 52, Hazardous, Restricted, and Perishable Mail. A copy of Publication 52 can be found by clicking here. The proposed edits would implement the Preventing Online Sales of E-Cigarettes to Children Act (Act), which adds ENDS to the definition of “cigarettes”, making them subject to the regulations of the Jenkins Act. If the proposed edits are upheld, ENDS will also become subject to the mailability restrictions and exceptions in 18 U.S.C. 1716E (PACT Act), which rely on the Jenkins Act definition of “cigarettes.”

However, as the quoted statement above reads, a final rule is forthcoming regarding the mailability of ENDS, it has not been issued yet. And, as the USPS’ recent document states:

“Until the final rule is issued, ENDS are not subject to the PACT Act, although they may be nonmailable for other reasons. See, e.g., 18 U.S.C. 1716(a), (h) (poisonous, explosive, and other dangerous materials, and advertising, promotional, or sales matter relating to the same); 21 U.S.C. 843(b)-(c), 863 (controlled substances, drug paraphernalia, and advertisements relating to the same); 39 U.S.C. 3018 (hazardous materials). Regardless of the legal status of any products under state or local laws, violations of these Federal mailability laws can result in civil and/or criminal penalties.” (Emphasis added).

Since its publication earlier this week, I have received numerous calls from existing and potential clients regarding the impact of the USPS’ recent publication on their businesses. One of the first questions I am asked is whether this publication obviates the requirements set forth in the PACT Act regarding the shipment of vaporizers and vaporizer products. The answer to this question is no, this does not eliminate the various requirements set forth in the PACT Act that relate to federal and state registration, age verification, taxation, et al. This publication simply addresses the issue of the mailability of ENDS and the other requirements of the PACT Act still apply to any company or person shipping vaporizers or vaporizer products directly to consumers.

The second question I am asked is whether the language referenced in the USPS’ recent publication was a “win” for the hemp and CBD industry. The answer to that question is unknown. 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.” The USPS stated, however, that it is not accepting applications for exceptions at this time, but it provided some information regarding the exception application process and it also provided some guidance to mailers interested in availing themselves of any exceptions that may ultimately be made available. The reason for not accepting exception applications is clear, due to the fact the final rule has not been published the USPS has not yet determined whether and to what extent those exceptions will be extended to ENDS.

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.

What is encouraging, however, is the fact that in its recent publication, the USPS specifically dealt with the mailability of CBD products. In its section titled “Mailability Beyond the PACT Act” the USPS made it clear that ENDS implicate mailability statutes and regulations beyond the PACT Act. As a result, the USPS urged all persons currently or prospectively engaged in the mailing of ENDS- including, in particular those who intend to continue mailing ENDS under any potentially available PACT Act exceptions to review Publication 52 carefully. It then went on to highlight specific issues, the first of which was CBD products.

The USPS’ recent publication provided the following related to CBD products:

“For hemp-based products containing CBD with a THC concentration not exceeding 0.3 percent, mailers must retain, and prepare to make available upon request, records establishing compliance with all applicable federal, state, and local laws pertaining to hemp production, processing, distribution, and sales, including the Agricultural Act of 2014 and the Agricultural Improvement Act of 2018. Such records may include laboratory test results, licenses, and compliance reports. See Publication 52 section 453.37.”

With that in mind, it is important to note that any company or person shipping hemp/CBD vaporizers and vaporizer products can still do so via the USPS, provided it complies with the other terms and conditions of the PACT Act. In addition, and as a matter of best practice, any entity or person shipping hemp/CBD vaporizers and/or vaporizer products should comply with the requirements set forth in Publication 52 section 453.37 as they relate to record keeping establishing compliance.

Kight Law will continue to update the readers of this blog regarding the ever-evolving regulations governing the cannabis industry, including an update regarding the eventual publication of the USPS final rule regarding the mailability of ENDS.

In the meantime, for information on how you or your company can comply with the terms of the PACT Act, reach out to one of our attorneys who can assist you in your compliance efforts. Additionally, Kight Law has recently put together a PACT Act Resource Guide which provides practical advice and useful resources for complying with the terms of the PACT Act. For more information about how Kight Law can help you or your business, contact us today.

April 26, 2021

This article was written by Kight Law attorney Philip Snow. Kight Law represents hemp and CBD businesses in the US and throughout the world. To schedule a consultation with Philip, please click here and mention this article.