USPS Says Hemp CBD Vape Products included in Ban on Mailing E-Cigarettes
The U.S. Postal Service (USPS) on the 20th of October, 2021, declared its final ruling on the mailability of vapes. USPS officially affirmed that devices like vapes cannot be shipped via U.S mail. This policy was enacted in compliance with the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA) that was signed into the constitution by former President Donald Trump last year.
Before this, an initial version of this policy was proposed but saw major restrictions from the general public. Most public commerce encouraged USPS not to interpret the law in such a manner. However, the agency claimed that cannabis vapes match the description of what lawmakers pushed to ban.
POSECCA primarily regulates the delivery and sale of electronic delivery systems (ENDS). And according to the bill, POSECCA specifically;
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restrict the delivery and sale of these systems to individuals below the legal age to buy tobacco products subject to the delivery and sale of these systems to specific requirements which entails licensing, labeling requirements, and tax.
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instructs the USPS to establish regulations to the banning of these systems and instructs the National Institutes of Health to carry out a study on the impacts of e-cigarette use on the health of young adults and youths.
Explanation of the Rules
USPS gave a detailed explanation of the rule that was published in the Federal Register. By the letter of the law, the ban includes marijuana and hemp vapes.
The agency asserted that hemp, marijuana, and other derivatives of the products are substances. Therefore to the degree that they may be delivered via an aerosolized solution, their parts, accessories, and components, all fall within POSECCA's scope
But, a lot of people have argued that USPS shouldn't interpret the bill as such. This is because a ban on cannabis products would be in disagreement with local or state cannabis laws. Congress has earlier sanctioned spending legislation that restricts the use of Justice Department funds from infringing in state-legal medical cannabis programs. It is said that the USPS rule conflicts with this spending legislation rule.
In response to these claims, USPS contended that the arguments were invalid because;
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the rule was established as part of the federal government. Hence it is unaffected by local or state cannabis laws
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the rule is not part of the Justice Department which is the sole department of the government prohibited by the state protection rider.
USPS further explained that hemp with a THC quantity of 0.3% is generally mailable and federally legal. However, only to the point that they are not included in an ENDS product or function as an element of one. To this end, businesses can mail out legal hemp-derived products if they are not vaping products that fall under POSECCA's scope.
It's good to note that the Agriculture Improvement Act and the POSECCA overlap but do not conflict. The Agriculture Improvement Act solely excluded specific products for the CSA. It does not exclusively acknowledge hemp and other derivatives of hemp to be mailable, displacing recent legislation such as POSECCA. As regards POSECCA, it prohibits the mailing of specific hemp and other derivatives of hemp. This legislation has made some forms of a class of goods nonmailable while leaving the rest mailable. This approach is not a legal conflict but instead a discrepancy in the workings of mailability regulation.
The exception to the Rule
There are a few exceptions to the recent mailing rule. The rule does not forbid the shipping of vapes and vape products within the states of Hawaii and Alaska. Registered businesses can mail vapes among one another's or to government institutes. Vape products for public health purposes and consumer testing can be sent by cannabis companies. Also, persons can ship a maximum of 10 ENDS for non-commercial purposes every month. Above all that, companies are prohibited from sending vaping devices via U.S mail to consumers.
Several others further argue that CBD products should fall under health exemption but USPS claimed otherwise. The agency mentioned that creating such exemption wouldn't apply except and unto the Food and Drug Administration (FDA) authorizes such product.
As regards, FDA, ENDS products have not been approved by them for therapeutic delivery of non-nicotine substances. These include CBD and other derivatives of marijuana. Not to forget, only hemp or hemp-derivatives with no more than 0.3% of THC are mailable under the Controlled Substances Act. This is regardless of any local or state laws on medical cannabis or POSECCA.
The Aftermath of the Rule
Many vaping advocates claim that the ultimate USPS rules only confirm the concerns they've long expressed as Congress enacted the prohibition.
President of the American Vaping Association, Gregory Conley, made some interesting comments in an interview with Marijuana Moment. He said USPS not once asked Congress to give them a fresh unfunded mandate. He believes that Congress established an overly expansive language giving the USPS no choice but to apply the law as written.
Conley asserted that the vaping association expects that it will some time (months or even years) before USPS can move companies through the application process. Only then, can USPS allow B2B sales and because of this, issues along the supply chain are bound to develop among independents
However, one thing remains unclear and that's the issue of enforcement of the law. Will it be vigorously enforced? Most especially concerning products that lack federal or state excise taxes. Conley admits there's a chance that enforcement could be severe with punishments being swift and drastic. As a result, retailers need to be careful about their choices. Trading short-term profit for possible legal crises before a federal judge isn't worth it.
Bottom Line
Vendors are about to witness a trial by fire now that the final USPS rule has been sanctioned. Many vendors will have no choice but to make use of private services. Vaping companies and their customers are about to discover how much they have relied on U.S mailing services.
The only way forward now, is for vaping companies to make use of private courier services which is quite expensive. In the end, vaping consumers will be at the receiving end of the increase in cost.
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