Vapes, cartridges and accessories can no longer be mailed from a business to a customer, as is already the case with cigarettes and smokeless tobacco.
The United States Postal Service has officially updated its regulations to reflect a legislative ban on mailing vaporizers, e-cigarettes, and other electronic nicotine delivery systems.
The ban has been imminent since the passage of the omnibus spending bill in December 2020, and was originally supposed to take effect on April 26, 2021. The USPS delayed that deadline, saying it needed time to figure out exactly how to implement the new restrictions.
The prohibition on sending vapes via mail is part of the “Preventing Online Sales of E-Cigarettes to Children Act.” The act aims to minimize sales of electronic cigarettes to minors buying online.
Although the act targeted nicotine, its language sweeps in several items intended for use with hemp. The act defines an “electronic nicotine delivery system” (ENDS) as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.”
“It goes without saying that marijuana, hemp, and their derivatives are substances,” the USPS wrote in the final rule published in the Federal Register on October 21. Thus, the new regulations include e-cigarettes, e-hookahs, e-cigars, vape pens and other vaporizers, as well as the cartridges and accessories that go with them.
Addressing comments from the public arguing that the ban would interfere with legal cannabis sales, the USPS said THC is already unmailable (with a few exceptions) under the Controlled Substances Act, “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.”
Same goes for devices, parts and accessories, which can qualify as drug paraphernalia.
And while hemp products with no more than 0.3 percent THC by dry weight can be mailed, the privilege is no longer extended to vapes, carts or accessories for hemp-derived products.
“[T]hose substances continue to be mailable generally,” USPS wrote, “to the extent that they are not incorporated into an ENDS product or function as a component of one.”
"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.”
— United States Postal Service
Do the new regulations conflict with the Agriculture Improvement Act? USPS thinks not.
“The [Preventing Online Sales of E-Cigarettes to Children Act] and the Agriculture Improvement Act overlap, but they do not conflict,” the agency wrote. “The Agriculture Improvement Act merely excludes certain products from the [Controlled Substances Act]. 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.”
Exceptions to the Rule
- USPS left some room in the rule to allow for delivery of products meant to help people quit smoking or for therapeutic use. However, these must be approved by the FDA and marketed and sold solely for their stated purpose. So far, no such product exists.
- The ban won’t apply to packages mailed within the states of Alaska or Hawaii.
- To enable commerce, there is an exception for shipments between legally operating businesses in approved sectors, and between those businesses and government agencies.
- To allow for gifts and other noncommercial use, the USPS will allow individual adults to mail up to 10 lightweight packages containing ENDS per month.
