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USPS – [Concluded] Vape Mail Ban
10/21/21 – Final Rule published in the Federal Register (“Treatment of E-cigarettes in the Mail“).
04/26/21 – Due to an overwhelming number of comments submitted to USPS regarding the proposed prohibition on sending vapor products through the mail, USPS did not post the final rule by the deadline set by Congress. While vapor companies are still allowed to ship via USPS until the final rule is published, all other parts of the law are in effect. (see “Statutes Affected …” and “Effective Dates” in the alert below)
03/22/21 – Comments on the proposed rule close.
02/19/21 – The US Postal Service posted in the Federal Register its proposed rule change regarding shipment of tobacco and nicotine products through the mail, “Treatment of E-Cigarettes in the Mail”
12/27/2020 – President Trump signed into law HR 133 – Consolidated Appropriations Act, 2021, which contained a provision banning the shipment of vapor products through the US Postal Service.
Again, a special Thank You to the thousands of passionate advocates who sent their comments with USPS!
Former President Trump signed the 2021 Appropriations bill into law on Dec 27, 2020. Included in that 5,000+ page bill was language that adds “electronic nicotine delivery systems” (or “ENDS”) to shipping regulations enacted by The Jenkins Act and The Prevent All Cigarette Trafficking Act (PACT Act). The practical effect of the new law is a ban on shipping vapor products through the USPS.
Complicating matters, even if small, independent vapor retailers find carriers willing to ship their products to consumers, the compliance issues are likely beyond their means. For example, the law requires sellers to be compliant with state, local, and tribal tax laws that are inconsistent across the country and subject to change on an unpredictable basis. Currently, the human and technological resources required to fulfil these requirements are only affordable by the largest companies. Complying with federal law means that tobacco products being shipped require market authorization from the FDA, and a way for shipping companies to verify that a product and its manufacturer meet this requirement.
The net effect of the new regulations is a ban on most direct to consumer shipments of vapor products (which is a broader category than just those associated with nicotine).
- The Jenkins Act
- The Jenkins Act requires tobacco (and soon vapor) sellers to report interstate sales of cigarettes to the buyers’ state tobacco tax administrator. (Internet Cigarette Sales).
- The Prevent All Cigarette Trafficking Act (PACT Act)
- Regulates the mailing of tobacco products (specifically cigarettes and smokeless tobacco, and now vapor products) to consumers.
- Registration requirements
- “Any person who sells, transfers, or ships for profit of cigarettes or smokeless tobacco in interstate commerce, whereby such cigarettes or smokeless tobacco are into a state, locality, or Indian country of an Indian tribe taxing sale or use of cigarettes or smokeless tobacco or who advertise or offer’s cigarettes or smokeless tobacco for sale, transfer or shipment.”
- Includes a List of Unregistered or Non-Compliant Delivery sellers as well as requirements for reporting, recordkeeping, and delivery.
- Grants the ATF authority to inspect records and any tobacco products kept on the premises.
- For more details on the PACT Act, visit the ATF website.
- The Jenkins Act
- [Effective 90 days after passage, Mar. 27, 2021] Amends the “Jenkins Act” to include vapor products in regulations governing shipments of cigarettes and other tobacco products. The Jenkins Act requires tobacco (and soon vapor) retailers to report interstate sales of cigarettes to the buyers’ state tobacco tax administrator. (Internet Cigarette Sales)
- [Effective no later than 120 days after passage, Apr. 26, 2021] Directs the US Postal Service to promulgate regulations prohibiting shipping vapor products through the mail.
- Effective Upon Publication of Final Rule [October 21, 2021]
- “Section 603(b) provides that the prohibition will apply to mailings of ENDS “on and after” the publication date of the final rule. In specifying this immediate effective date, Congress expressly abrogated the standard 30-day notice period for a final rule under the Administrative Procedure Act (APA), which would otherwise apply to rulemakings concerning the mailability statute here.”
On February 19, 2021, the USPS published in the Federal Register a proposed rule, which is necessary to carry out the new law. The public is invited to review and comment on the rule until March 22, 2021.
While it’s true that comments submitted to USPS about the shipping ban are unlikely to change the outcome or alter the policy, USPS is seeking input from the public on a few key issues:
The current law applies to cigarettes only and limits shipping based on the number of packs (not more than 12 packs or 240 cigarettes).
The USPS astutely notes that Congress did not provide a pack-equivalent measure of vapor products because no such measure exists. The USPS concludes that vapor products cannot, under the current definition of “ENDS,” meet the criteria for the Consumer Testing and Public Health exceptions.
This may mean that in the event of another contamination scare (e.g. 2019 lung injuries attributed to illicit THC cartridges) state departments of health would be prohibited from sending samples of products to a lab or federal agency via US Mail.
It is unclear if the peer-to-peer exception will apply to returns via USPS or other carriers for defective products.
Frequently Asked Questions
There is a critical flaw in the new rule that must be highlighted repeatedly: Congress does not understand the products or the stakeholders affected by this regulation (which is one reason why it granted the authority to regulate tobacco and nicotine to the FDA). This being the case, new laws restricting access to safer nicotine and tobacco products are likely to fall short of their stated goals. In a worst case scenario (like the one we’re living in now), the new regulations inflict immediate injury and lasting harm.
The USPS is genuinely seeking feedback and suggestions regarding unforeseen and unavoidable consequences that may result from the new rule. There are questions of accuracy involving language and weights-and-measures, as well as how USPS will determine which packages to reject. Although answers to these questions may not change the ban on shipments of vapor products to consumers, it is vital that we are engaged.
Sharing your experience with switching to vaping or other smoke-free products provides context for officials that isn’t shown in “the data” or offered by supporters of harsh regulations. Your comments add weight to the evidence showing how successful safer alternatives to smoking can be – given the right balance of control and access. Just as this is true for your comment to the USPS, it applies to all opportunities for sharing your experience to a permanent, official record.
At the moment, CASAA is not aware of any legislation that would undo the shipping ban enacted by the Trump Administration. In fact, the current law was enacted with bipartisan support.
FedEx and UPS have also issued policy changes banning the shipment of vapor products, which become effective in the coming months.
Additionally, the shipping of vapor products is only one part of the problem created by this legislation. Including vapor products into the PACT Act subjects them to a number of expensive and burdensome regulations overseen by the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives). And while some large online retailers and manufacturers are working on shipping solutions, the new law will likely make online sales directly to consumers virtually impossible for most small vaping businesses.
Business to Business shipments are exempt from the USPS shipping ban with one very important caveat: the products and the shipper must be compliant with all federal, state, local, and tribal laws that may apply. This includes FDA regulations affecting tobacco and nicotine products.
Please share this alert with your friends and favorite vaping businesses.
Action #1 (concluded)
Comment Period Closed
March 22, 2021