For some time now, there have been doubts about what is defensible regarding the possibility of e-cigarettes being sent. The 2018 Farm Bill made cannabis derivatives legal and this made many believe that these products could easily be mailed to others. The US Postal Service (USPS) recently came out with an air purifier and issued its final rule banning mail-delivery of nicotine and cannabis devices. Read on as we look at the nitty-gritty of this new announcement and how it could impact stakeholders in the cannabis industry.
A bill passed through Congress last year that was primarily intended to ban nicotine vaping devices from being mailed. Since the passage of this law, the USPS has been developing a series of regulations to put the new law into effect but nothing concrete has been put forward so far. Cannabis enthusiasts and advocates have also tried to persuade the USPS not to interpret the law in a way that affects businesses in the cannabis industry. However, with the new announcement by the USPS, The agency has classified all cannabis and nicotine-related devices as unacceptable for mailing.
A closer look at the bill’s language shows exactly why it is a source of contention between the agency and public defenders of cannabis. The bill passed by Congress places limits on “electronic nicotine delivery systems.” The subject of controversy now lies in the accepted definition of electronic nicotine delivery systems by the agency. The agency defines the term as any device that delivers nicotine or any other substance to a user through a mist solution. The basis for contention here is that the agency classifies cannabis and marijuana under “any other substances” and thus places the same restrictions on nicotine devices. The agency supports the position that since cannabis and its derivatives can be delivered through vapes and other delivery devices, it falls within the scope of these laws.
The counterargument to the USPS interpretation
Prior to pronunciation by the USPS, there had been a series of backtracking on the possible interpretation of the law and how it might conflict with other pre-existing laws. Some cannabis advocates have made it clear that the move the USPS has taken to enforce this could conflict with some state or local marijuana laws. Despite the fact that cannabis is still federally illegal as it has been classified as a Schedule I drug by the federal government, various states have legalized it for medical and recreational use. This particular move by the USPS according to some advocates contradicts the spending law approved by Congress. The legislation limits the use of Department of Justice funds to interfere with state legal medical cannabis programs.
The agency also had its say in this counter-argument to further clarify its position. The USPS believes these arguments are incorrect because it is a subsidiary of the federal government that still classifies cannabis as a Schedule 1 narcotic and therefore illegal. Therefore, the agency remains free from the implications of state or local cannabis policies that classify a natural product as legal. Likewise, the agency explains that spending legislation approved by Congress affects only the Department of Justice of which it is not a part. The Ministry of Justice is bound by state protection passengers in appropriations legislation.
Exceptions to the law
Despite the fact that the law prohibits mail delivery of cannabis delivery devices, it is still not comprehensive as there are still restrictions in the law. The agency clarified that because cannabis contains no more than 0.3 percent THC is considered federally legal, it is still generally available as long as it is not incorporated into an ENDS product. ENDS products are pre-determined electronic delivery system products and the law includes products that serve as a component of ENDS products. This means that non-cannabis-based products are not restricted by the USPS.
Another exception to the new postal rule is that shipping of vapes still applies within the states of Alaska and Hawaii. The law also allows vapes to be mailed between verified companies or government agencies. This largely opens up shipping of products by cannabis companies to consumer testing by federal agencies or other public health research purposes. This means that the USPS has applied its company-to-company shipping rules for marijuana smoking devices. Those who are well versed in the process know that the application process alone is very difficult.
Individuals are also allowed to ship up to 10 ENDS products for non-commercial use every 30 days. Permission for such transactions is based on the fact that they must not be commercial and no money must be changed on account of this shipment. This exception allows individuals to return products deemed damaged or unacceptable to the manufacturer. Unfortunately, the manufacturer does not allow a replacement of the product to be mailed to the consumer.
The role of POSECCA and PACT Act
The POSECCA Act (Prohibition of Online Sales of Electronic Cigarettes to Children Act) as passed and signed by President Trump prohibits residential delivery of nicotine and cannabis products. This law requires e-cigarette shipping companies to comply with the Prevention of All Cigarette Trafficking (PACT) Act, which places strict requirements on shippers. Sellers will be required to use a commercially available database to verify the age of customers, collect an adult signature at the point of delivery, and register with the ATF and the US Attorney among other requirements. This is sure to further tighten the grip around shipping vaping products across the country.
The extent to which vaping consumers and businesses depend on the US Postal Service is about to show and not in an entirely good way. Many online sellers after this new announcement from USPS will have to opt for special services. The downside to this move is the uncertainty around how these sellers will operate.