Here we Go Again With the U.S and Vaping Products: USPS Vape Ban, The Pact Act, ENDS, and Cannabis
Recently, the U.S. Postal Service (USPS) released a final rule on the shipping of vapes, stating that even devices containing federally legal hemp derivatives like CBD- generally cannot be shipped using the U.S. mail service.
The mailing agency has been developing the regulations to act in accordance with a bill passed by Congress last year, whose primary goal was to prohibit nicotine vaping devices from being shipped. Still, it has much broader implications.
The PACT Act, ENDS, and Cannabis
The Prevent All Cigarette Trafficking (PACT) Act was a 2009 amendment to the 1949 Jenkins Act, which was mainly passed to fight against online sales of untaxed cigarettes. The 2009 law prohibited USPS from delivering cigarettes and smokeless tobacco. This required online sellers to register with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the tax administrators of each state.
You’re probably wondering, cannabis isn’t tobacco. Your sentiments are correct – tobacco and cannabis are not the same things. But a final rule made out by UPSP on October 13, 2021, banned the shipment of marijuana and hemp vape products in the mail, subject to certain exceptions.
Despite the outrage and pure ridiculousness of this decision, the agency ultimately said that cannabis vapes fit the description of what lawmakers moved to ban. The bill was said to be for the mailing of nicotine-based vapes. And while the legislation supports that term, it also refers to the limitations on “electronic nicotine delivery systems (ENDS): “any electronic device, through aerosolized solutions, delivers nicotine, flavor, or any other substance to the user inhaling from the device.”
Others have commented that the USPS shouldn’t restrict cannabis products because the ruling could conflict with state or local marijuana policies. USPS commented saying that the comments are invalid because 1) it is part of the federal government and is, therefore, unaffected by state or local cannabis policies and 2) it is not part of the Justice Department, which is the only branch of the government restricted by the state protection.
USPS commented on the legality of hemp, acknowledging that hemp containing up to 0.3% THC is federally legal and is generally mailable, but on “ to the extent that they are not incorporated into an ENDS product or function as a component of one.”
So, while businesses can generally mail out legal hemp-derived products, that’s only the case if they are not vaping products covered under the new law.
Vape Bans, POSECCA, and Cannabis
Soon after the passage of POSECCA, FedEx announced it too would not carry vaping products-presumably to avoid unpremeditated PACT Act violations, which it has dealt with before. However, UPS soon followed after FedEx, while DHL had already made rules against shipping vapes before the law had made its debut. As a result, though FedEx has made some exceptions for particular larger companies, they can’t be counted as a delivery choice for most online vape sellers.
“The POSECCA and the Agriculture Improvement Act overlap, but they do not conflict. The Agriculture Improvement Act merely excludes certain products from the CSA. It does not affirmatively declare hemp and hemp derivatives to be mailable in any and all circumstances, superseding all other relevant laws (such as the POSECCA). For its part, the POSECCA restricts the mailability of only certain hemp-based and related products; hemp-based non-ENDS products are unaffected, as are ENDS products falling within one of the PACT Act’s exceptions. That Congress has rendered some subset of a class of goods to be nonmailable while leaving the remainder mailable is not some sort of legal conflict, but, rather, how mailability regulation typically works.”
As of July 12, 2021, over 400 vape companies petitioned FedEx to reverse its stance on shipping and receiving vapes.
The PACT ACT, Labels, And Recordkeeping
Photo Credit: RT Magazine
The PACT ACT comes with additional labeling and recordkeeping regulations. With the federal law backing up its overly strict standards, they are handing out criminal penalties that could include large fines and maybe even federal prison sentences. Although the FDA is relatively lax enforcement, the ATF is an actual police agency that takes its mandates seriously.
The law requires online sellers to:
- Verify the 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 ATF and the U.S. Attorney General
- Register with state and local tax administrators in all states and localities where business is done
- Collect and pay all applicable local and state taxes, and affix any required tax stamps to the products sold
- Each month, a list of all transactions must be sent to each state’s tax administrator that includes the names and addresses of each customer sold to, the quantities and type of each product sold, and the name, address, and phone number of the person delivering the shipment to the recipient.
- Maintain all records of your delivery sales for four years after the sale date
What Happens Next?
According to the recent ruling, USPS can ship vapes within the states of Alaska and Hawaii; verified businesses can mail vapes between each other or to government agencies; companies can send products for consumer testing or public health purposes, and individuals can ship up to 10 ENDS for non-commercial use per 30-day period. Beyond that, it is generally prohibited for a company to send a vaping device to a consumer via U.S. mail.
Some are concerned that CBD products could fall under the health exemption to the general ban. Still, USPS commented that CBD would not apply unless and until the Food and Drug Administration (FDA) approved any such products.
“The FDA likewise has not approved any ENDS product for therapeutic delivery of any non-nicotine substance, including, in particular, CBD or other substances derived from marijuana. Once again, except for hemp-derived CBD containing no more than 0.3 percent THC by dry weight, cannabis and cannabis derivatives remain nonmailable under the Controlled Substances Act regardless of the POSECCA and notwithstanding any State or local laws on “medical” marijuana. See supra section III.C.2; 84 FR at 12970. Far from taking marketing claims of therapeutic benefit at face value, the FDA has undertaken enforcement action against companies making such claims about CBD and other cannabis-related products absent new drug approvals from the FDA. See 84 FR at 12970.”
A few couriers still ship vape products in the U.S. Since early this year. There’s something in the works. Sources say that a partnership between a private group and a national residential shipping carrier simply known as X, has begun building a vaping product delivery network to serve residential customers.
They say that shipping will cost a little bit more than USPS fee’s, but not too much more. Something to keep in mind when it comes to this: the considerable costs retailers will incur because of the PACT Act and tax compliance, and restructuring all of their shipping processes, may reflect in the prices charged for products and shipping.
As of April 1, the company will launch in Florida, Texas, California, Nevada, and Arizona. There is always a way; with USPS’s ruling on vapes, the rise in private delivery agencies will surface. Ultimately, it falls on the online vendors to take the chance that their precious goods will make it to their customers safely and without legal turbulence.
Also known as LiteraryBlkGirl. I’m a Rockford, Illinois-born; Chicago-based writer, archivist, and community organizer oriented towards restorative justice, healing, and liberation. I started using cannabis in college as a way to be social. Now I use cannabis as a way to heal my body from the inside out. Through my writing, I hope to continue to advocate for the health and wellness of Black communities. Favorite Strain: It’s a tie between Girl Scout Cookies, Black Girl Magic OG, and King Louis
Written by: Victoria Sockwell
Edited by: Veronica Castillo
Korasana (with partner Zero Point Extractions)
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