In 2020, new shipping rules aimed at the vaping industry were introduced by the U.S. Congress. Under the PACT Act, the electronic nicotine delivery systems (ENDS) could no longer ship through the USPS. But following the ruling in 2020, confusion afflicted the hemp industry as ENDS became defined as, “any electric devices that, through an aerosolized solution, delivers nicotine, flavor, or any other substances to the user inhaling from the device.”
The hemp industry uncertainty developed because the initial definition of the PACT Act was intended to keep nicotine out of the hands of children. But the classification included “any other substances,” which could include hemp and cannabis.
From December 2020 until September 2021, companies argued against the ban on cannabis and hemp products. Independent companies — like UPS and FEDEX — provisionally opted to prohibit the shipment of ENDS to not add to the confusion.
On October 21, 2021, the USPS announced a final ruling regarding the PACT Act — concluding that cannabis and hemp vaping products fall under the ENDS definition. Therefore, these products can no longer ship through the USPS. “It’s a bit of a blind spot, and the optics of it are not great. The initial definition was to keep nicotine out of the hands of children and it has now imposed on the entire hemp industry,” stated Brett Weiss, CEO and Founder of Smilyn Wellness.
What is the PACT ACT?
On March 27, 2021, Congress amended the Preventing All Cigarette Trafficking (PACT Act) to include new regulations regarding the delivery and sales of electronic nicotine delivery systems (ENDS), which include e-cigarettes, vapes, and flavored and smokeless tobacco.
Any person or business that sells, transfers or ships for profit any ENDS in interstate commerce must now register with ATF according to 15 U.S.C. §§ 375 and 376. They must also register with any states that they ship vapes into.
The amended PACT Act statute bans the U.S. Postal Service (USPS) from mailing vapes and other smokeless tobacco products. This amendment to the PACT Act is a coordinated partnership between ATF and USPS and includes the Food and Drug Administrations’ Tobacco 21 law that prohibits the selling of all tobacco products to people under the age of 21 years old. The final rule was published in the Federal Register on 10/21/2021 as 39 CFR Parts 111 and 121, at p 58398.
Exceptions to the PACT ACT Shipping Rule
Shipping vapes is legal in Alaska and Hawaii. Additionally, verified businesses can ship vapes between each other or to government agencies for consumer testing or public health purposes. Also, individuals can ship up to 10 ENDS for non-commercial use per 30 day-period.
There are no rules for how the USPS will monitor what is being shipped and what the consequences will be for breaking the federal law. Hemp and cannabis companies will now have to find private shipping companies to work with — ultimately increasing the price of products and shipping.