USPS bans shipping of vape products

USPS bans shipping of vape products

 

As of October 21, the U.S. Postal Service (USPS) has effectively banned the use of mail services to ship vape products in the U.S.

USPS has been developing regulations in order to comply with the expansion of the PACT Act and last year’s congressional funding bill; while the rule was designed to target electronic nicotine delivery systems (ENDS) the ban will encompass all cannabis products, including federally legal hemp-derived products like CBD and the increasingly popular, Delta-8.

Hemp products containing up to 0.3 percent THC are federally legal and remain generally mailable, “THC-containing substances that are excluded from the CSA—that is, hemp and hemp derivatives with no more than 0.3 percent THC by dry weight—are not subject to CSA-based mailability restrictions, and items used with such substances (and not with controlled substances) may fall outside the definition of drug paraphernalia. Publication 52 section 453.37. As such, those substances continue to be mailable generally, to the extent that they are not incorporated into an ENDS product or function as a component of one. To the extent that they do comprise or relate to an ENDS product, however, then that product is now nonmailable under the PACT Act and POSECCA, except pursuant to a PACT Act exception.”

 

There are exceptions to the rule. 

  • Intra-Alaska and Intra-Hawaii Mailings: Intrastate shipments within Alaska or Hawaii;
  • Business/Regulatory Purposes: Shipments between verified and authorized tobacco-industry businesses for business purposes, or between such businesses and federal or state agencies for regulatory purposes;
  • Certain Individuals: Lightweight, noncommercial shipments by adult individuals, limited to 10 shipments per 30-day period;
  • Consumer Testing: Limited shipments of cigarettes sent by verified and authorized manufacturers to adult smokers for consumer testing purposes; and
  • Public Health: Limited shipments of cigarettes by federal agencies for public health purposes under similar rules applied to manufacturers conducting consumer testing.

 

Vapes can be shipped within the states of Alaska and Hawaii. Additionally, verified businesses can use the postal service to ship vapes to one another or government agencies. Companies may also use the postal service to ship products for testing or public health purposes.

Privately, residents can continue to use the mail to ship up to 10 ENDS (for non-commercial use) per 30-day period.

In relation to cannabis, the agency writes:

“Numerous pro-ENDS commenters urged that the POSECCA be construed, or the Postal Service’s implementing regulations be written, to exempt ENDS items consisting of, containing, or used with marijuana and marijuana- or hemp-derived products. Many of these commenters asserted that rendering such items nonmailable would conflict with State and local laws decriminalizing or legalizing cannabis for medical or recreational purposes. Some claimed that the inclusion of such products would conflict with provisions in recent appropriations Acts (including that which includes the POSECCA) that bar the Department of Justice from using appropriated funds to prevent certain States and Territories “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” E.g., Public Law 116-260, div. B, sec. 531. Finally, some argued that inclusion of such products would conflict with the removal of hemp and hemp derivatives (with not more than 0.3 percent tetrahydrocannabinol (“THC”) by dry weight) from the definition of marijuana in the Controlled Substances Act (“CSA”). See Agriculture Improvement Act of 2018, Public Law 115-334, sec. 10113, 12619, 132 Stat. 4490, 4908, 5018, Public Law 91-513, sec. 102(16)(B), codified at 7 U.S.C. 1639o(1); 21 U.S.C. 802(16)(B), 812(c)(17).

 

As discussed further in section III.D.1.i, notwithstanding Congress’s use of “nicotine” in the term “electronic nicotine delivery systems,” 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 the POSECCA’s scope.

 

   

That said, THC is generally nonmailable for reasons independent of the POSECCA and the PACT Act. THC-containing substances remain generally prohibited under the CSA, regardless of whether they are intended for purportedly medical or recreational purposes or whether the shipper or recipient resides in a State or locality that has decriminalized either or both such uses. 21 U.S.C. 812(c)(17), 843(b); Publication 52 section 453. Devices, parts, components, and accessories used with such substances can qualify as drug paraphernalia, which is likewise nonmailable. 21 U.S.C. 863; Publication 52 part 453. The only exceptions to this mailing ban are for hemp and hemp derivatives that contain no more than 0.3 percent THC by dry weight. See Publication 52 section 453.37.

 

Thus, ENDS products containing or used with THC ( e.g., THC-containing liquids, cannabis waxes, dry cannabis herbal matter) are already nonmailable under the CSA. Congress’s decision to keep such items out of the Federal postal network does not bear on whether their use or exchange violates State or local law. Nor does it alter whether the Department of Justice—a Federal entity independent of the Postal Service—may use its appropriated funds to interfere with the operation of State or local laws.

 

For clarity, even if a shipper could avail itself of a PACT Act exemption with respect to ENDS products generally, the shipper is still prohibited from mailing ENDS products that contain THC (other than hemp derivatives with no more than 0.3 percent THC by dry weight). Nor does the lack of civil or criminal sanction under State or local law entitle any person to ship THC through the Federal postal network or absolve them of penalties under Federal law, so long as the Federal CSA remains applicable.

 

Conversely, THC-containing substances that are excluded from the CSA—that is, hemp and hemp derivatives with no more than 0.3 percent THC by dry weight—are not subject to CSA-based mailability restrictions, and items used with such substances (and not with controlled substances) may fall outside the definition of drug paraphernalia. Publication 52 section 453.37. As such, those substances continue to be mailable generally, to the extent that they are not incorporated into an ENDS product or function as a component of one. To the extent that they do comprise or relate to an ENDS product, however, then that product is now nonmailable under the PACT Act and POSECCA, except pursuant to a PACT Act exception.

 

The POSECCA and the Agriculture Improvement Act overlap, but they do not conflict. The Agriculture Improvement Act merely excludes certain products from the CSA. It does not affirmatively declare hemp and hemp derivatives to be mailable in any and all circumstances, superseding all other relevant laws (such as the POSECCA). For its part, the POSECCA restricts the mailability of only certain hemp-based and related products; hemp-based non-ENDS products are unaffected, as are ENDS products falling within one of the PACT Act’s exceptions. That Congress has rendered some subset of a class of goods to be nonmailable while leaving the remainder mailable is not some sort of legal conflict, but, rather, how mailability regulation typically works.”

 

You can view the Final Rule in full below:

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