Takeaways from the new USPS rule prohibiting the mailing of vape products

On October 21, 2021, the United States Postal Service (USPS) issued a long-awaited Final Rule regarding the mailability of electronic nicotine delivery systems (ENDS) products through the Postal Service, while also clarifying which products are and are not covered by this rule. Most notably, the Final Rule clarified that hemp vape products are included within the definition of ENDS, and are thus nonmailable. The Final Rule also provides that a legally operating ENDS business may apply to USPS for a business-to-business exception to the general rule prohibiting the mailing of such products.

The Final Rule was issued in response to the enactment of the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA) in December 2020, which amended the Prevent All Cigarette Trafficking Act of 2009 (PACT Act) to include ENDS products in the definition of cigarettes. This amendment makes ENDS products generally nonmailable. While the term “ENDS” includes the word “nicotine,” the POSECCA broadly defines ENDS to include “any electronic device that . . . delivers nicotine, flavor, or any other substance to the user inhaling from the device” including “an e-cigarette; an e-hookah; an e-cigar; a vape pen; an advanced refillable personal vaporizer; an electronic pipe; and any component, liquid, part, or accessoryof a device described [above], without regard to whether the component, liquid, part, or accessory is sold separately from the device.” (emphasis added).

On February 19, 2021, USPS published a notice of proposed rulemaking to implement POSECCA.In April 2021, USPS issued draft guidance concerning the implementation of the POSECCA to the rules on mailability of ENDS products. The proposed rule and guidance left several issues open, most notably, whether the definition of ENDS and the scope of the mail prohibition would include: (1) cannabis-related vape products, including hemp vape products, (2) synthetic nicotine-related vape products, and (3) heat-not-burn products, ie, a product that functions by heating tobacco leaf matter just shy to the point of combustion. The April 2021 guidance also left open whether ENDS could be mailed pursuant to any of the PACT Act exceptions.  

These open issues were addressed in the Final Rule and below are some key takeaways:

• ENDS need not contain nicotine: The Final Rule specifically notes that “despite the focus on nicotine” in the term “electronic nicotine delivery system,” Congress expressly provided that the scope of ENDS products extends beyond nicotine-related products because of the inclusion of the language “nicotine, flavor, or any other substance” in the definition of ENDS.
• Definition of ENDS includes hemp, CBD and synthetic nicotine: The Final Rule makes clear that “marijuana, hemp, and their derivatives are substances,” under the definition of ENDS, and thus, nonmailable if contained in an ENDS product. Commenters had urged the USPS to exclude such substances from the definition of ENDS under the theory that the rule would conflict with the Agriculture Improvement Act of 2018, which provides that States and Native American Tribes cannot interfere with the transportation or shipment of hemp even if that jurisdiction has not legalized the production of hemp.^[1] The Final Rule explains that there is no conflict between its rule and the Agriculture Improvement Act. Namely, the Agricultural Improvement Act merely excludes products from the Controlled Substance Act but does not “affirmatively declare hemp and hemp derivatives to be mailable in any and all circumstances” and forms. The USPS also made explicit that an “electronic device that” delivers “synthetic nicotine” “through an aerosolized solution” is an ENDS product.
• Non-vape hemp and CBD products are mailable: The Final Rule confirmed that hemp and hemp derivatives (ie, cannabis products that contain less than 0.3 percent THC by dry weight), including popular hemp-derived CBD products, are generally mailable unless the hemp is incorporated into an “electronic device that delivers” the hemp “through an aerosolized solution,” ie, an ENDS product. The Final Rule also states that items that are used with hemp, ie, hemp pipes and accessories, “may fall outside the definition of drug paraphernalia” if not mailed with a controlled substance, and thus, are also mailable.
• Heat-not-burn cigarettes are not included in the definition of ENDS but may still be non-mailable as cigarettes: The Final Rule clarified that heat-not-burn products are not ENDS because the tobacco is not aerosolized. However, the agency noted that many of these products contain tobacco, and as such, might “already be nonmailable under the pre-existing definition of ‘cigarette.’”
• The business regulation exception applies to ENDS products, but an application must be granted before such a product can be mailed pursuant to the exception: The primary purpose of POSECCA is to prevent the direct mailing of ENDS products to youth consumers. As such, the Final Rule made clear that ENDS products may be mailed between legally operating businesses pursuant to the business/regulation exception to the PACT Act. To mail an ENDS product pursuant to this exception, a business must apply to the USPS to determine eligibility for the exception. Businesses eligible for the exception must: (1) be “legally operated,” (2) “have all applicable State and Federal Government licenses or permits,” and (3) be “engaged in” ENDS product manufacturing, distribution, or sales. However, to mail a product pursuant to the exception, USPS must first grant the exception application. The USPS has warned applicants to expect substantial processing time for such applications and emphasized that there is no grace period to continue using the Postal Service to mail ENDS products while an application is pending.
• There is one other exception to the rule prohibiting the mailing of ENDS products, but it does not currently allow the commercial distribution of ENDS products: The PACT Act does not prohibit the mailing of an ENDS product that has been approved by the FDA as a smoking cessation device or a therapeutic product. However, the FDA has not approved an ENDS product as a smoking cessation device or as a therapeutic product, and thus, this exception is not currently available to any ENDS business. The consumer testing exception, which allows “legally operating” combustible cigarette manufacturers to mail product to verified adult users for consumer testing purposes, is not applicable to ENDS products.
• Using USPS to mail marijuana products is illegal under the CSA: USPS reminded the public that marijuana “is generally nonmailable” because marijuana remains federally illegal under the Controlled Substances Act. Thus, the product is nonmailable even if the mailer resides in a State that has legalized marijuana, and a PACT Act exception would otherwise be available. Commenters had otherwise urged the USPS to exempt marijuana- and marijuana-derived products (ie, a cannabis product that contains greater than 0.3 percent THC by dry weight) from the definition of ENDS on the grounds that a prohibition against the use of mails for marijuana-vape products would conflict with state and local laws legalizing cannabis.