The United States Postal Service (USPS) recently announced its long-awaited “final rule” for mailing cannabis-based vapor products and it’s not good news for those in the cannabis vapor products industry around the country.
For most producers and retailers of cannabis vapor products, it remains illegal to mail their merchandise.
The Preventing Online Sales of E-Cigarettes to Children Act (POSECCA), passed by Congress in December 2021, amended the definition of “cigarettes” in the Prevent All Cigarette Trafficking (PACT) Act to include “Electronic Nicotine Delivery Systems” or “ENDS.”
This included “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.”
It was hoped by those in the cannabis industry that there might be some general exception for cannabis-based products and products derived from hemp — given the changing attitudes towards cannabis usage in general across the country.
However, the final ruling effectively expanded the definition of “cigarettes” to include vapor devices containing cannabis derivatives — with some limited exceptions (which are explained below).
How did USPS justify its decision?
The USPC has justified its decision by saying that its hands were tied by POSECCA’s inclusion of hemp and marijuana derivatives in the definition of ENDS — and its statutory obligation to follow the principles of the Act.
The Postal Service noted the following:
“…despite the name, an item can qualify as an ENDS product without regard to whether it contains or is intended to be used to deliver nicotine; liquids that do not actually contain nicotine can still qualify as ENDS, as can devices, parts, components, and accessories capable of or intended for use with non-nicotine-containing liquids.”
Results of the ban on mailing cannabis/hemp
Many believe that the fact that vape devices designed for federally legal hemp derivatives like CBD cannot be shipped through the U.S. mail tends to fly in the face of opinion in the U.S.
In recent years, there has been a considerable push towards the relaxation of rules concerning cannabis-based products and the recognition among the general public that many people use cannabis for its medicinal properties.
The POSECCA Act was clearly aimed at stopping nicotine-based vaping devices from being mailed and reducing children’s use of the devices. But many people in the burgeoning cannabis industry are affected too — and, ultimately, those who use the devices will have to meet the extra mailing costs involved in using a private courier service.
Restricting cannabis and hemp-based businesses is another indication of federal opinion being out of step with that of the states, many of which have been decriminalizing cannabis usage in recent years.
The ruling was made despite Congress having approved spending legislation that prohibits the use of Justice Department funds for interfering in state-legal medical cannabis programs.
The USPS countered this objection to its ruling by saying that:
- It is part of the federal government and is, therefore, unaffected by state or local marijuana policies, and
- It is not part of the Justice Department, which is the only branch of the government restricted by the state protection rider in appropriations legislation.
The Postal Service also quashed hopes that CBD products could fall under the health exemption to the general ban, stating that this would not apply unless and until the Food and Drug Administration (FDA) approves any such products:
“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 decision has understandably upset many stakeholders within the cannabis industry, whose final hope is that the laws may not be vigorously enforced. However, beware! Punishments for violating the law can be severe for retailers around the country.
Rather than risk a hefty fine, it will be safer to use private courier services and pass the extra costs on to the customer.
Exceptions to the rule
There are some notable but limited exceptions to the new USPS mailing rule. These include:
- Vapes can be shipped within the states of Alaska and Hawaii
- Verified businesses can mail vapes between each other or to government agencies
- Companies can send products for consumer testing or public health purposes
- Individuals can ship up to 10 ENDS for non-commercial use (such as gifts between adults, product returns, recycling purposes, etc.) per 30-day period
- Hemp products containing up to 0.3 percent THC (by dry weight) are federally legal and generally mailable “to the extent that they are not incorporated into an ENDS product or function as a component of one”
The USPS outlines a series of requirements for shippers regarding labeling and sending products in these exceptional circumstances.
It should also be noted that some people within the cannabis industry have voiced concerns over how long the process of “verifying” a business may take before B2B mailing can occur.
To reiterate, for all intents and purposes, you should consider it illegal for a company to send a vaping device to a customer using the U.S. mail service.
These are exciting but challenging times for the cannabis industry. For informed legal advice about any issue facing your cannabis business anywhere in the U.S., call 866-329-0729 for a consultation with a knowledgeable cannabis attorney at Cannabis Law Solutions.
How will our cannabis services help you?
Cannabis business entity formation
Whether you are looking to form a limited liability company (LLC) or a corporation, our experienced business lawyers can discuss the pros and cons of both and help you incorporate your business with the optimal structure to achieve your goals.
Cannabis business licenses
If you want to run a cannabis business, you will need a valid business license issued by your state authority as well as local permits. Eligibility criteria are likely to be stringent and we can help you navigate the often-complex license application process.
Cannabis corporate documentation
Whether you need to prepare for a license application, transfer of business ownership, change of corporate structure, transfer business location, or another business process, we can help you identify and draft the documentation you need to operate legally in your state.
Cannabis administrative law
State authorities watch licensed and unlicensed cannabis businesses closely. If you violate regulations, you could face an administrative penalty. Our attorneys can provide representation or help you prepare for an administrative hearing, settlement conference or appeal.
Cannabis disputes and litigation
Whether you have a dispute with another business, a legal issue with one of your partners or a licensing or administrative issue, you may need legal assistance to help resolve it. We are adept at alternative dispute resolution methods as well as civil litigation.