USPS to Ban Mailing Cannabis Vapes

Today the USPS released its regulations under the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA, which amended PACT act), regarding the mailability of e-cigarettes.

The USPS found they had authority to ban devices that work with non-nicotine liquids, and rejected the various arguments of a coalition of cannabis and hemp vape companies. The agency also clarified that devices that work with dry herbs are not subject to the rule.

The rule is effective upon formal publication, on 10/21/21 (tomorrow).

Background
On February 19, 2021, the Postal Service published a notice of proposed rulemaking (86 FR 10218) to implement the Preventing Online Sales of E-Cigarettes to Children Act (“POSECCA”), Pub. L. 116–160, div. FF, title VI (2020). Section 602 of the POSECCA adds “electronic nicotine delivery systems” (“ENDS”) to the definition of “cigarettes” subject to regulation under the Jenkins Act, codified at 15 U.S.C. 375 et seq. As a result, ENDS are now subject not only to rules and restrictions governing remote sales under the Jenkins Act, but also to separate restrictions and exceptions for postal shipments, which rely on the same definition. 18 U.S.C. 1716E(a)(1). Section 603 of the POSECCA requires the Postal Service to promulgate implementing regulations and provides that the prohibition on mailing ENDS will apply immediately “on and after” the date of this final rule.

The statutory framework into which ENDS must now fit was established by the Prevent All Cigarette Trafficking Act of 2009 (“PACT Act”), Pub. L. 111–154, sec. 3, 124 Stat. 1087, 1103–1109 (2010), codified at 18 U.S.C. 1716E. Briefly, the PACT Act allows cigarettes and smokeless tobacco to be mailed only in very limited circumstances.

Summary of Final Rule
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. Congress did not grant the Postal Service authority to make policy decisions to waive or defer the operation of the POSECCA, to create new PACT Act exceptions, or to expand, restrict, or modify
the scope of existing exceptions, beyond the reasonable application of the conditions enumerated in the PACT Act.  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.”  The POSECCA excludes from the mailing ban any ENDS product that is approved by the U.S. Food and Drug Administration (“FDA”) for sale as tobacco cessation products or for other therapeutic purposes and marketed and sold solely for such purposes. At this time, the FDA has not approved any such devices or drugs.

Schedule an appointment to see us if you have questions on how this applies to your business.