If you are a vaper, then hopefully your preferred purveyor of vape products has made you aware of the major changes that are about to hit the industry. But in case you’ve missed the memo, it is about to become much more difficult (and expensive) for businesses to mail vape products.
This is due to the passing of a large-scale spending bill back in December, a massive piece of legislation meant to keep the government going while also providing Covid-19 relief spending. (Remember those stimulus checks?)
However, the bill also included a provision that will have a huge impact on any company that sells vape products.
Firstly, the legislation redefines the word “cigarette” under the Prevent All Cigarette Trafficking Act (PACT Act) to include all “electronic nicotine delivery systems” (“ENDS”). The definition of ENDS is so broad that it includes not just nicotine vaping devices (which are the intended target) but any device that can be used to vape – as well as the vapable substances themselves (again, not limited to nicotine).
Designed to discourage the sale of nicotine vape products to minors, the provision also instructed the USPS to create a set of regulations that would ban the shipment of any vaping product to residential addresses (so business-to-business mail should not be affected by the ban). This sweeping provision will force companies that sell vape products to use alternate carriers that have the capability to verify the age of the recipient of the package.
To make things more complicated for companies that sell vape, other major private carriers like UPS, DHL, and FedEx have announced that they will also comply with the provisions of the PACT Act and refuse to deliver vape products.
The new provision was intended to make it harder for minors to order nicotine-based vape products to their home. But the definition of "electronic nicotine delivery systems" is so sweeping that it will have an impact well beyond the intent of the PACT act.
Vaping advocates wasted no time in slamming the new legislation. They accused the drafters of conflating the nicotine products the bill targets with otherwise legal hemp-derived vape products, thereby penalizing an industry that has nothing to do with nicotine products:
“Thanks to their intransigence, the language included in the omnibus is so sloppily drafted that it will also ban the USPS from shipping CBD liquids intended to be vaporized, as well as devices intended for use with THC or other non-nicotine substances,” Gregory Conley, president of the American Vaping Association, said in a press release.
With the date of the mailing ban now looming over businesses, it’s unclear what the future holds for companies that sell legal hemp-derived CBD vape products. In the short term, these companies will be forced to comply with the new PACT provision, and that could have catastrophic implications for small businesses already under pressure due to the pandemic.
Due to the widespread public outcry over the vape mail ban, the USPS has suggested that the final rule may include an exception for legal hemp products, which would obviously come as a huge relief for the industry. But the agency has also stated that it does not have the capacity to provide exceptions on a case-by-case basis until the final rule is published.
This week, however, the agency has published guidance on how a company that sells hemp-derived CBD products can prepare to “continue mailing ENDS under any potentially available PACT Act exceptions.” According to the guidance:
“For hemp-based products containing CBD with a THC concentration not exceeding 0.3 percent, mailers must retain, and prepare to make available upon request, records establishing compliance with all applicable federal, state, and local laws pertaining to hemp production, processing, distribution, and sales, including the Agricultural Act of 2014 and the Agricultural Improvement Act of 2018. Such records may include laboratory test results, licenses, and compliance reports.”
CBD companies that use USPS to mail products have always had to be prepared to show documentation proving the legality of their products. So while this represents another level of record-keeping, most companies will be happy to comply if it means that their business will be exempted from the ban.
The final rule, which should be published sometime during the summer, may provide relief for struggling small businesses that rely on vapable CBD products. The question is how many will be able to hang on until the new rules are clarified.