USPS Bans Mailing Hemp and CBD Vape Products to Consumers
By Andrea Golan, Jace Pohlman
Nov 3, 2021
On October 21, 2021, the United States Postal Service (USPS) released its Final Rule that implements the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA). POSECCA, passed within a 2020 COVID-19 relief bill, amended the Prevent all Cigarette Trafficking (PACT) Act to apply to e-cigarettes and all vaping products, including those containing hemp-derived ingredients. The USPS Final Rule bans the shipment of Electronic Nicotine Delivery Systems (ENDS) through the postal service unless an exception is met.
POSECCA defines ENDS products as, “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.” ENDS also includes any component, liquid, part, or accessory of a device, whether or not it is sold separately. USPS concluded that Congress intended “any other substance” to extend to hemp-derived products like CBD and hemp vapes. This ban does not extend to devices only compatible with solid concentrates or dry hemp material, like a dry herb vaporizer.
USPS notes that the Bureau of the Alcohol, Tobacco, Firearms, and Explosives (ATF) determines the category for non-nicotine products. Businesses should reach out to the ATF for further clarification on specific products they are looking to ship.
As stated above, the USPS Final Rule provides a few exceptions to the prohibition on the mailing of ENDS using the postal service. Shipments within the borders of Alaska and Hawaii are still permitted. In addition, specific business-to-business and individual activities can occur.
Business-to-Business and Regulatory Exception
Businesses that have all required licenses or permits and are engaged in the following activities: manufacturing, distribution, wholesale, export, import, testing, investigation, or research of ENDS products are permitted to mail ENDS only for business purposes between eligible businesses or for regulatory purposes between such businesses and eligible government agencies.
Businesses requesting the business/regulatory purposes exception must submit a complete application (PS Form 4615E and complete Worksheets 4615-EM and 4615-ER), along with all supporting documentation requested on those forms and worksheets. The applicant also needs to provide copies of any applicable licenses, shipping destinations, source of any CBD, THC concentration, and technical specs or safety data sheets for any hazardous materials. All applications should be submitted to MDA@usps.gov.
If approved, mailings are subject to a number of requirements, including:
All mailing must be tendered using either: (i) Priority Mail Express with Adult Signature Required or Adult Signature Restricted Delivery service (see DMM 503.8.0), or (ii) Priority Mail with Adult Signature Required or Adult Signature Restricted Delivery service.
Only a verified employee of the addressee business can accept delivery, provided the employee is at least 21, or the minimum age set by the state or municipality, which may be older than 21.
The mailing must bear certain statements.
USPS provides worksheets that assist in putting the above information together for shipments. Eligibility of shipping will be handled through the Postal Service’s Pricing and Classification Service Center (PCSC), with a centralized application process that allows businesses to fill out the required company, product, and shipping information. Additionally, USPS employees will verify shipping/receiving documentation, product paperwork, and employee identification when the business ships or receives the order.
This exception may also apply for product testing laboratories; however, they must be licensed at a state or federal level to use the business-to-business exception. On the other hand, independent testing laboratories would fall under the individual shipment exception so long as they meet the requirements.
Shipping by Individuals Exception
The individual exception permits the mailing of small quantities of covered products for non-commercial purposes. The USPS Final Rule provides examples of non-commercial activities, such as products exchanged as gifts, product returns from a consumer to a business, and sending products back to manufacturers for recycling purposes. Additionally, individuals who act as “individual testers” who are not state or federally certified may fall under this exception, subject to the below weight and frequency restrictions.
Individuals are limited to 10 mailings in a period of 30 days, and the shipment must not exceed 10 ounces. Similar to the requirements for business-to-business and regulatory purposes, shippers and recipients will have to show proof of age and identity and ensure the package is appropriately labeled. USPS employees will verify both at the time of shipping and receiving.
There are also limits on product returns and mailing for recycling purposes. The value of the product return cannot exceed the value of the originally purchased products. Additionally, if the ENDS manufacturer’s recycling service generates profit for the business, it would constitute a commercial activity and not be permitted.
POSECCA excludes from the ban any product for sale as tobacco cessation products or other therapeutic purposes which the U.S. Food and Drug Administration (FDA) has approved. The FDA approved the first set of ENDS products earlier this month, and more may follow in the coming months.
Moreover, to the extent that USPS can exercise enforcement discretion under the PACT Act, i.e., not to enforce the law, the USPS has stated it declines to do so. From an industry perspective, many worry that the mailing prohibition will significantly disrupt supply chains and result in a de facto ban on all vaporizers and their components, regardless of whether the devices contain nicotine or tobacco or are intended to be used with nicotine or tobacco. (In addition to USPS, UPS, FedEx, DHL, and other common carriers have stated they will not ship vape products.) Alternative private shipping options are becoming increasingly available for vape sellers, which is encouraging for the industry.
The above is not intended to be a complete summary of the PACT Act or the USPS Final Rule. Please contact a member of the VS team if you wish to discuss these new rules in greater detail.