Last month, the United States Postal Service (USPS) released its final rule on the mailing of vape cartridges and other electronic nicotine delivery systems (ENDS). And it’s not good news for anyone who orders or sends vapes in the mail.
The new rule will limit adults shipping nicotine, hemp, and CBD vape cartridges to 10 lightweight non-commercial ENDS every 30 days. The federal service already prohibits THC vapes from being mailed.
Buyers and sellers nationwide will have to cover the costs of more expensive private shipping options to adjust. The new restrictions were originally aimed at stopping underage tobacco use, but all e-smokers will be caught in the fray.
What ENDS products and accessories will be included?
Whether you vape hemp, CBD, THC or tobacco, any component of the device will be limited.
That includes batteries, power sources, and charging attachments for vaporizers, empty cartridges, reservoirs, or pods for vaporizers, attachments including mouthpieces and other accessories are included in the new restrictions, at the discretion of the USPS and Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).
An official statement from the USPS to Leafly
November 3, the USPS addressed specific concerns about gray areas for hemp and CBD vape users.
“Parts, components, liquids, and accessories of ENDS devices as subject to the PACT Act,” said the USPS via e-mail. “Therefore, to the extent that (above items) qualify as parts, components, liquids, or accessories of ENDS devices, then they are now generally nonmailable.”
USPS added, “interpretive questions about whether a specific item falls within the statutory definition should be directed to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, with a copy to the Postal Service’s Pricing and Classification Service Center.”
The relevant provisions of the new rules are highlighted below for reference.
“ENDS include but are not limited to, electronic cigarettes (e-cigarettes), electronic hookahs (e-hookahs), electronic cigars (e-cigars), vape pens, advanced refillable personal vaporizers, and electronic pipes. Any reference to ENDS also includes any component, liquid, part, or accessory of an ENDS device, regardless of whether the component, liquid, part, or accessory is sold or provided separately from the device.” – USPS official ruling on ENDS, Section 471.5
The USPS also communicated the exact letter of the new law to employees in an official memo.
What about Hemp and CBD flower?
Hemp-derived CBD that consists of 0.3 percent THC by dry weight remains mailable, for the most part. Even though their electronic counterparts are caught in between these state and federal laws.
The news is a tough break for retailers and users who have embraced vapable hemp and CBD products. Without USPS, costlier mailing via other couriers will likely skyrocket for sellers and consumers.
The final rule didn’t come out of left field for many high-volume shippers. Leafly has kept an eye on mailing regulations since 2016. The feds weren’t friendly about mailing funky foliage back then either.
What laws are behind this new ban?
This ban stems from the USPS’ attempt to stay in harmony with two separate acts.
First, the 2009 Prevent All Cigarette Trafficking (PACT) Act, which originally limited mailing of cigarettes and smokeless tobacco products to 10 per adult, per month. Exceptions included business, regulatory, testing and public health purposes, as well as intrastate mailing in Alaska and Hawaii.
Then came the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA), introduced in 2019. POSECCA aimed to restrict both the sale and delivery of tobacco products to anyone under the legal age, and was passed in December, 2020.
In its final rule last week, the USPS concluded it had no choice but to ban ENDS used for hemp and CBD along with tobacco products with respect to both acts. The agency concluded that POSECCA’s definition of “cigarettes” now officially includes ENDS used to vape any substance, so PACT restrictions apply.
Why are cannabis and hemp involved in this?
Marijuana and hemp-derived products officially entered the USPS’ ENDS group chat thanks to Vol. 86 , No. 201 of the Federal Register, which states:
“The plain language of the POSECCA definition makes clear that nonmailable ENDS products include those containing or used with not only nicotine, but also “flavor or any other substance.” It goes without saying that marijuana, hemp, and their derivatives are substances. Hence, to the extent that they may be delivered to an inhaling user through an aerosolized solution, they and the related delivery systems, parts, components, liquids, and accessories clearly fall within POSECCA’s scope. (58404)” – Federal Register
The U.S. Food & Drug Administration’s past judgements on CBD was also mentioned.
The Federal Register states, “the FDA likewise has not approved any ENDS product for therapeutic delivery of any non-nicotine substance, including, in particular, CBD or other substances derived from marijuana.”
The Register added, “Far from taking marketing claims of therapeutic benefit at face value, the FDA has undertaken enforcement action against companies making such claims about CBD and other cannabis-related products absent new drug approvals from the FDA.”
The USPS ruling concludes, that “except for hemp-derived CBD containing no more than 0.3 percent THC by dry weight, cannabis and cannabis derivatives remain non-mailable under the Controlled Substances Act regardless of the POSECCA and notwithstanding any State or local laws on ‘medical’ marijuana.”
How do I get an exemption to mail ENDS?
An April 2020 volume of the Federal Register provides mailers with guidance to assist in preparing exception applications.
Shippers seeking an ENDS exceptions must first apply to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Last week’s ruling included details on how to use these exceptions and what steps the shipper must take. For example, labeling the package to say “PERMITTED ENDS MAILING—DELIVER ONLY UPON AGE VERIFICATION”).
Multiple ENDS industry commenters and manufacturers used the Controlled Substances ACT (CSA) definition of marijuana and tried to encourage further exemptions to the rule, but to no avail.
Need further guidance interpreting the new law?
The USPS ruling advises anyone with further questions to contact the ATF.
Section 474.1 of the ruling says: “Interpretative guidance regarding these provisions may be requested by contacting ATF at the following address, with a copy to the Pricing and Classification Service Center (PCSC) (see 213 for address): Bureau of Alcohol, Tobacco, Firearms and Explosives, 99 New York Avenue NE, c/o 90 K St. NE, Ste. 250, Washington, DC 20226.”