The 2021 omnibus spending bill passed by the U.S. House and Senate on Dec. 21 includes a provision to impose new restrictions on the online sale of electronic cigarettes and the delivery of those products. However, the language in that provision may also end up restricting the online sale and delivery of certain CBD products.
The legislation bans the United States Postal Service (USPS) from shipping vaping products. It also requires online age verification for the purchase of vape products and upon delivery of those products. Under this act, businesses selling vape products online must also comply with the Jenkins Act, as well as all state regulations regarding the sale and taxing of tobacco products.
Legislation passed in 2010, called the Prevent All Cigarette Trafficking (PACT Act), already requires online retailers of cigarettes and smokeless tobacco products to meet these requirements. However, this new legislation, called the Preventing Online Sales of E-Cigarettes To Children Act, would extend these requirements to vaping products, which were not originally listed in the PACT Act because they were not common at the time the PACT Act passed. The PACT Act is part of the larger Jenkins Act.
In a press release, Congresswoman Rosa DeLauro of Connecticut refers to the Preventing Online Sales of E-Cigarettes To Children Act as “another critical step to ending the youth vaping epidemic”. DeLauro first introduced the provision in 2015, according to the release.
“The inclusion of these critical protections against the online sale of e-cigarettes to children will prevent countless illnesses and save lives,” DeLauro said. “This bill’s enactment will mark the end of a battle I have fought to close the loophole that allows online e-cigarette vendors to sell to customers without verifying their age at the point of delivery.”
DeLauro’s statements and the congressional support for the Preventing Online Sales of E-Cigarettes To Children Act appear to reflect a growing concern among some community members over the prevalence of nicotine vape use among teens. In the past few years, numerous cities and states around the country have tried to curb this behavior by prohibiting certain businesses from selling flavored tobacco products and/or raising the legal age for purchasing tobacco products from 18 to 21. The federal minimum age for the sale of tobacco products was raised from 18 to 21 in 2019.
Although the Preventing Online Sales of E-Cigarettes To Children Act is intended to curb the use of nicotine products, the way it was written does not appear to limit these new restrictions to only nicotine vaping products. Instead, it defines an “electronic nicotine delivery system” as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.”
It lists the following products as examples: e-cigarettes, e-hookahs, e-cigars, vape pens, advanced refillable personal vaporizers and electronic pipes. The legislation also specifies that it applies to any component, liquid, part, or accessory that is sold separately.
It is the phrase, “any other substance” that is so concerning to the cannabis industry because it could be interpreted to include CBD or marijuana vape products. Aaron Smith, the chief executive officer for the National Cannabis Industry Association, told Marijuana Moment that the cannabis industry will be pushing lawmakers and regulators to not interpret the legislation that way.
“We’re making sure that Congress and the incoming administration understand that it would be a misguided waste of resources to apply this to the already heavily regulated cannabis industry,” Smith reportedly said. “In the long run, it’s important that cannabis is de-scheduled so it can be appropriately regulated at the federal level, clearing up ambiguities like this.”
Other criticism of the new legislation claims it missed the mark and warn that it could have damaging effects on society.
A press release from the American Vaping Association states that this legislation “will harm public health and small businesses by, among other things, banning the United States Postal Service (USPS) from shipping vaping products to consumers. And due to sloppy drafting, the effects of the law will be felt beyond the world of nicotine.”
Gregory Conley, president of the American Vaping Association, pointed out in the release how this legislation appears to be a tone-deaf addition to a pandemic relief package that was intended to support small businesses and social distancing.
“Many Americans at risk of COVID-19 complications have been staying home and ordering their supplies online, but Congress just decided they should either pay much more for shipping or go to a retail store that may not stock the product they use to stay off deadly cigarettes,” he said.
If online retailers are unable to use USPS to ship their merchandise, they may be forced to use more expensive courier services. However, even these options could become limited. A FedEx spokesperson reportedly told Vaping360 that the business will not be delivering vape products as of March 1, 2021.
“If the increase in shipping costs wasn’t enough, the bill also imposes huge paperwork burdens on small retailers, and backs it up with threats of imprisonment for even innocent mistakes,” Conley added.
Some of these burdens reportedly include registering with the Attorney General, registering with the tobacco tax administrators of each state where the business sells vaping products, affixing the proper tax stamps to products, and collecting state and local taxes. Online retailers must also send each state’s tax administrator a list of all transactions involving customers in that state, as well as certain details about each of those customers and the products they purchased. Businesses must also maintain five years of records for any delivery that could not be completed because there was reason to believe the customer was underage.
These and other PACT Act regulations will begin to affect online retailers of vaping products 90 days after the enactment of the Preventing Online Sales of E-Cigarettes To Children Act. The USPS ban on vaping products will begin 120 days after the enactment.
Sources