USPS Might Soon Exempt Some Vape Businesses From “Mail Ban”

    On April 19, the United States Postal Service (USPS) offered new guidance for vape businesses ahead of a rule that would make it difficult for their products to be shipped by mail to consumers.

    The notice, published in the Federal Register, gave some clarity on the forthcoming policy and outlined potential exceptions, which could include legal hemp and its derivatives. As the restriction is set to take effect immediately after its finalized and USPS will not review any exemptions ahead of time, the agency released what it hopes is a streamlined application process.

    The postal service suggests that prospective applicants create a spreadsheet that includes a number of elements for each sender and recipient of the proposed vaping devices: business or government entity names; respective addresses; which USPS retail or business office where senders would tender shipments; which USPS office would retrieve shipments; descriptions of the business and government entities; licensing information; testing data if applicable; brand names and descriptions of the products; and the quantity and concentration of the products.

    The forthcoming law has been both a lingering headache and a source of confusion for both vape and hemp advocates since late December 2020, when then-President Donald Trump signed a COVID-19 relief bill that updated the Prevent All Cigarette Trafficking (PACT Act). That action amended 2010 legislation to now include all e-cigarettes and vaping products.

    The revision—known as the Preventing Online Sales of E-Cigarettes to Children Act—is meant to do what its name describes, and has become known among vaping consumer activists and manufacturers as the “vape mail ban.”

    Among other requirements, the PACT Act also stipulates that manufacturers register with the Bureau of Alcohol, Tobacco, Firearm and Explosives (ATF), as well as file monthly reports with state tobacco tax administrators. Business-to-business sales are permitted, though registration and reporting conditions apply.

    “The USPS didn’t ask for this new law to be thrust upon them, but it states that business-to-business transactions are permitted.”

    Vaping activists have been worried that the PACT Act will shutter many small vape businesses, and that even if they can apply for exemptions, the procedure could take so long—and they could lose enough money during that period—that an exemption wouldn’t matter. (Other delivery services—United Parcel Service (UPS), FedEx and DHL—already have restrictions on shipping vaping products.)

    “If any of the relevant exceptions are ultimately made available for [electronic nicotine delivery systems (ENDS)], then, given the highly decentralized nature of the ENDS industry relative to the industries historically covered by the PACT Act, the Postal Service anticipates receiving ENDS-related exception applications at a rate several orders of magnitude above the historic norm,” the guidance reads.

    “The USPS didn’t ask for this new law to be thrust upon them, but the law states that business-to-business transactions are permitted,” Greg Conley, president of the American Vaping Association, told Filter. “With major carriers like FedEx and UPS abandoning America’s retail vape shops, business owners and their customers need the USPS to act with expediency on solving this issue.”

     

    Implications for Hemp

    “Hemp is very much still implicated [in the PACT Act],” Alex Buscher, a hemp industry lawyer in Colorado, told Filter. “The definition of ‘ENDS’ is broad enough that it may be read to include batteries and empty cartridges.”

    Hemp advocates don’t believe they’re meant to be in the crosshairs. The legislation appears directed at keeping vaping products out of the hands of children and underage teenagers. However, many are concerned that the wording of the bill could extend to them—specifically, the reference to “any electronic device that, through an aerosolized solution, delivers nicotine, flavor or any other substance to the user inhaling from the device.”

    “Legal hemp and CBD-derived vapes are an unintended target of the broad language of the PACT Act amendment,” John Nathan, the president of the Massachusetts-based Bay State Hemp Company and a board member of the Northeast Sustainable Hemp Association, told Filter.

    We’ve already seen a similar semantic mixup with EVALI, the e-cigarette or vaping product use-associated lung injuries that made headlines in the summer of 2019 when young people were entering hospitals with what appeared to be burns on their lungs. Critics have long pointed out that the Centers for Disease Control and Prevention (CDC) didn’t make clear that it was vitamin E acetate—a chemical found in some illicit, tainted THC cartridges—that was causing the problem.

    But the damage was already done. Public opinion soured even more on nicotine vaping, which hadn’t been responsible for the damage, yet remained in the acronym.

     


     

    The American Vaping Association has provided donations to The Influence Foundation, which operates Filter. Filter‘s Editorial Independence Policy applies.

    Photograph by Marco Verch via Flickr/Creative Commons 2.0 

    • Alex Norcia

      Alex is a staff writer at Filter. He previously worked as a reporter and copy editor at VICE, and has been published in The New York Times MagazineThe Columbia Journalism ReviewThe Nation and The Daily Beast, among other outlets. He is also a freelance editorial consultant for the Foundation for a Smoke-Free World; The Influence Foundation, which operates Filter, has received both restricted and general support grants from the Foundation for a Smoke-Free World. Alex is currently based in Phoenix, Arizona.

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