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The “Preventing Online Sales of E-Cigarettes to Children Act” could present a problem for the CBD and legal cannabis industries.
As 2020 wound down, Congress passed a large spending package that included a much-welcome coronavirus relief bill. Buried within the 5,000-page spending package was a provision quickly signed into law by former President Trump – the Preventing Online Sales of E-Cigarettes to Children Act. The act has adopted the nickname “vape mail ban,” but impacts of this provision could be far reaching, more than simply prohibiting the USPS from shipping nicotine vaping devices to adult consumers; it could change the entire retail vape market for the worse, nicotine related or not.
Due to the drafting within the provision, the effects of this law will be felt far beyond the world of nicotine vaping and e-cigarettes. The law requires the U.S. Postal Service to create its own regulations banning the delivery of vaping products through the mail, whether they contain nicotine or not. The verbiage within the law redefines the word “cigarette” under the Prevent All Cigarette Trafficking Act (PACT Act), which is part of the over-arching Jenkins Act, to encompass “electronic nicotine delivery systems.” Despite the use of the word nicotine in the provision, the verbiage is so broad it extends to include vaping liquids and devices containing CBD, THC or other substances.
The PACT Act imposes stringent rules on online sellers that will in large part bar retailers from shipping any vape device to an adult consumer. The new wording to the Preventing Online Sales of E-Cigarettes to Children Act covers a broad range of products, much larger than the FDA’s Deeming Rule which gives the FDA the authority to regulate vaping products, and is unrelated to any FDA regulation.
An Act Within An Act
The Preventing Online Sales of E-Cigarettes to Children Act under the PACT Act will ban the shipment of any vaping products to consumers through the USPS, forcing retailers to turn to more expensive services that will be required to verify the consumer is at least 21 years old. Further, 90 days after enactment, all online retailers will be required to file extensive monthly reports with the State, Tribe and local governments, disclosing consumer order information. These regulations invite massive compliancy issues, as State, Tribe and local jurisdictions are inconsistent across the country.
The postal ban and provision to the PACT Act will include all e-liquid and oil vaping devices, including both nicotine and nicotine-free e-liquids, CBD, THC and Delta8 (d8THC) cartridges, oils and liquids, as well as every related component, part or accessory intended with the use of those products. All three of the major shipping carriers in the US will adopt these regulations, starting with the USPS and including the UPS and FedEx. DHL already has a ban on shipping vaporizer products. Although the act was presented to the public under the guise of protecting youth, it is already illegal to ship vaping products to minors. The FDA has continually enforced this over the years.
Banning the USPS, and other carriers in-turn, from shipping vaping products could have perverse impact on more than just the vaping industry (we are talking to you, CBD and THC coinsurers). This move could make it harder for smokers to quit while simultaneously harming small businesses who have strictly complied with Covid regulations. This legislation could disrupt the at-risk population of Americans who have been staying home and taking advantage of online orders and delivery to avoid the risk of catching Covid-19. While small businesses may be able to pick up the extra shipping costs through various other private carriers, the bill also imposes massive amounts of paperwork which further burdens small retailers, already feeling the impacts of the pandemic.
Vaguely Worded Vape Restrictions and What They Mean for CBD
“The sponsors of this legislation repeatedly refused to consider common sense amendments that would have protected youth, while also not needlessly shutting down small businesses. Thanks to their intransigence, the language included in the omnibus is so sloppily drafted that it will also ban the USPS from shipping CBD liquids intended to be vaporized, as well as devices intended for use with THC or other non-nicotine substances,” stated Gregory Conley, the president of the American Vaping Association.
So, what does all of this mean for those consumers interested in continuing to purchase CBD, legal THC or Delta8 vape products? The road ahead may be a bit more difficult. Private companies for shipment may become the standard, based on most of those companies requiring a signature for delivery, and therefor age verification. Companies can also register with the U. S. attorney general to get special allowances for product shipping, though this route is new. Many CBD and legal cannabis companies are already working through different measures to keep products shipping to consumers without delay, and this legislation may add an extra hoop or two to jump through.
The law, which will take effect this month, does not specifically mention hemp or CBD, but the CBD industry and legal THC cannabis businesses are preparing for implications. For any business or company who sells vape products, this act will have lasting effects. We here at Real Tested CBD are closely following the developments of this regulation and how it will impact consumers of the CBD industry now and in the years to come.
