The PACT Act, USPS, & ENDS Products: What Vape Sellers & Distributors Need To Know

UPDATE (2/9/22): Since the ban went into effect on 10/21/2021, several businesses have found methods to ship vaping products while remaining compliant with the mandate implemented by the United States Postal Service (USPS) and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

One week ago, the United States Postal Service (USPS) issued a final rule on the mailing and delivery of broadly-defined vaping products via the ubiquitous federal mailing service. In short, it’s complicated. But for some, the news is not all bad – just mostly. While exceptions will be made for a slew of varying circumstances, the general need-to-know information is that vaping products will no longer be “mailable” through the USPS (and those exceptions will be exceptionally difficult to obtain).

At first glance, the ban seems to cover all Electronic Nicotine Delivery Systems (ENDS) per the Prevent All Cigarette Trafficking (PACT) Act and Preventing Online Sales of E-Cigarettes to Children Act (POSECCA) – the latter of which has been commonly referred to as the “vape mail ban” over the past several months. But as you scroll through the final ruling, issued on October 21st, 2021 in the Federal Register, you’ll quickly notice a spiral of seemingly contradictory information that is sure to leave anyone’s head spinning – unless you’re a lawyer, of course. But in reality, most of us are not lawyers, and delineating the complex layers of information in the lengthy document is arduous at best and frustrating at worst. Thankfully, the internet has been hard at work unspinning the web, and, as usual, has come through on providing us with simplified versions of convoluted legal papers. 

Recent Background On The PACT Act & POSECCA

The Prevent All Cigarette Trafficking (PACT) Act was first introduced in 2009 and was intended to block the sale of cigarettes and tobacco to underage patrons ordering through the mail. In December of last year, the Act was amended “When a 5,000-plus page omnibus bill, the Consolidated Appropriations Act of 2021, was signed into law,” which effectively put a massive ban on all ENDS products, the definition of which is elaborate and somewhat cumbersome. 

Hidden in the depths of the amendment was the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA), which brought e-cigarettes, AKA vape devices, into the mix. The POSECCA section of the amendment is where you’ll find language requiring various parties to comply with the PACT Act, which now includes ENDS (is your head spinning yet?). 

The POSECCA definition of ENDS, by the way, technically includes “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.” Because of the governing language within POSECCA, which the USPS must legally follow, the mailing service was forced to include devices and products intended for use with cannabis commodities in its final rule in addition to nicotine devices and products. Take a look at the full statement from the final ruling’s summary: 

“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. This statutory definition resides in the Jenkins Act, which is administered by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), and inquiries about whether specific products are covered should be directed to ATF. Provisionally, however, certain aspects of the definition are apparent from the plain statutory language, such as that a user must inhale from the device and that a covered ENDS product must be, or be capable of use with, a liquid solution. At the same time, Congress expressly provided that covered ENDS products extend beyond nicotine-related use, as relevant products may deliver “nicotine, flavor, or any other substance.”

So Where Does That Leave Us Now?

First, since we know you’re all wondering, let’s cover the exceptions to the strict and clear ruling of the USPS. The summary of the final rule document begins, “ENDS products are generally nonmailable, except as authorized by an exception, and then only if all PACT-Act-related and non-PACT-Act-related conditions of mailability are met,” which heavily hints at the complexities of these exceptions for certain businesses/scenarios. 

People searched for exceptions far and wide during the public comment period ahead of this official final ruling last week. For example, according to section D2, “Some ENDS industry commenters urged the Postal Service to exclude personal vaporizers intended for use with waxes or dry herbs, as such substances do not take the form of an “aerosolized solution.” “Aha!” some might say, before reading the next sentence, that is. The section continues, “However, one public-health-oriented commenter recommended including solid substances and devices that aerosolize them, noting that, according to at least one definition, “solution” includes solid as well as liquid mixtures.” Just to get ahead of what you’re probably starting to think: yes, the rest of this is going to be just as convoluted. 

Exceptions 

• Hemp and hemp-derived CBD products “to the extent that they are not incorporated into an [electronic nicotine delivery systems] product or function as a component of one.” AKA, orally-ingestible CBD oil, hemp flower, and CBD edibles, which all must contain 0.3% or less THC to qualify as legal, are alright to ship through the USPS. THC and marijuana products, however, are listed as Schedule 1 drugs under the Controlled Substances Act (CSA) and may not be shipped through the service.
• That being said, according to reporting from Ganjapreneur, “vape devices for products like CBD cannot be shipped through the service,” because of “a bill passed by Congress last year to prohibit nicotine vape cartridges from the mail applies to vaping devices for hemp.” Additionally, dry herb vaporizers are technically “unmailable” through the USPS as they are considered to be drug paraphernalia. 

Some of the other exceptions include:

• Noncontiguous States: intrastate shipments within Alaska or Hawaii; 
  • There is also a stipulation, though, requiring shippers to follow the PACT Act rules, which included a lot of onerous record keeping in addition to numerous other responsibilities. 

• 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;
  • However, according to Vaping360, “The application process for B2B shipping is difficult, and is not going to be substantially streamlined or moved online, at least not anytime soon. While the “USPS says it is assigning additional personnel to help review B2B applications,” applicants “should expect review of their applications to require potentially substantial processing time.”

• Certain Individuals: lightweight shipments mailed between adult individuals, limited to 10 per 30-day period;
  • Apparently, “The packages must weigh no more than 10 ounces, and must be shipped using specified USPS services with adult signature at delivery.”

• Consumer Testing: limited shipments of cigarettes sent by verified and authorized manufacturers to adult smokers for consumer testing purposes.

• Public Health: limited shipments by federal agencies for public health purposes under similar rules applied to manufacturers conducting consumer testing.

What About Other Shipping Companies & Private Delivery Services? 

While you may have been thinking that you can cleverly get around the new provisions of the so-called vape mail ban, don’t get too excited. Even contracting out to private shipping companies doesn’t exempt you, your business, the shipping company, other businesses, or end consumers from the long-arm of the PACT Act. The amended law includes strict rules for those shipping vaping products regardless of the delivery service they opt to use. The PACT Act also uses the Bureau of Alcohol, Tobacco, and Firearms (ATF) to back these laws up in addition to penalties such as prison sentences and fines. 

Again according to Vaping360’s reporting on the final ruling, the law now requires online sellers to”

• 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 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

As if those weren’t enough hoops to jump through, FedEx and UPS, two of the country’s other major shipping companies, both announced they would no longer be carrying vape products soon after POSECCA’s passage. Private delivery services have subsequently attempted to snag the business that the PACT Act and POSECCA prohibited but there are still large regions of the US not covered by such companies, though that’s expected to change in the coming months. 

Because of the provision that the mail ban would not go into effect until the final ruling, many online sellers have continued to ship their vape products through the USPS since last March when the PACT Act was first applied to ENDS. But now, since the ban took immediate effect upon the ruling’s publishing last week, some are worried about the massive influx of requests from sellers private delivery services are all but certainly receiving right now.

Only time will tell how this final USPS ruling will affect the nicotine, cannabis, and vaping industries overall. Where there’s a will there’s a way, but the PACT Act and POSECCA are not going to make it easy for you to find that way. 

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