PACT Act Update: USPS Delays Ban on Shipping Vape Products
In a move intended to encourage the cannabis industry, the United States Postal Service (USPS) is delaying implementation of its new rules for enforcing a ban on the direct shipping of vaping products to consumers. As we reported earlier this year, recent changes to the PACT (Prevention of All Cigarette Trade) legislation put USPS in place to enforce the USPS’s new ban on shipping vape products from retailers to consumers.
I remain optimistic about postability, despite the dire outlook with this news lately. One reason for this is that the principles of legal interpretation give credibility to the argument of the prohibition Not apply to steam products that are not used to dispense tobacco or nicotine. While the USPS could have banned vaping products altogether as part of the new rule, it now appears they are taking the time to reconsider the implications of a comprehensive ban on shipping vaping products. The USPS must not exceed its own legal authority under the PACT Act by regulating steam products that do not fall under the definition of tobacco products, as such a rule could be challenged by various industry groups.
Photo via pxhere
If you’ve followed our PACT Act updates, you can now remember that it changed the PACT Act to define ENDS (Electronic Nicotine Delivery Systems) as “any electronic device that uses an aerosol solution to provide nicotine, flavor or other products delivers substance to the user who inhales from the device; includes – an e-cigarette; E-shisha; E-cigar; Vape pen; advanced refillable personal vaporizer; electronic tube; and all components, liquids, parts or accessories of a device described, regardless of whether the components, liquids, parts or accessories are sold separately from the device. “
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While many fear this will automatically include vaporizer components used in connection with marijuana and hemp products, I am not convinced that it does, and the USPS’s decision to postpone the regulatory process offers greater support for one such position.
THE TOBACCO CONTROL LAW
The Tobacco Control Act (TCA) replaces the PACT Act if there is a conflict between the two bills due to a provision in the PACT Act that the Act does not change or affect the provisions of the Food, Drugs and Cosmetics Act ( FDCA), including the TCA. The TCA does not explicitly define ENDS, but defines tobacco products as follows:
[A]Any product made from or made from tobacco and intended for human consumption, including any component, part or accessory of a tobacco product (with the exception of raw materials other than tobacco that are used in the manufacture of any component, part or accessory of a tobacco product) . (21 USC 321 (rr) (1).)
The TCA gave the Food and Drug Administration (FDA) full authority to determine which products qualify as “tobacco products” because, in addition to FDA oversight of cigarettes, roll-your-own tobacco, smokeless tobacco, and other traditional products, the TCA authorized the FDA also to regulate all other tobacco products that they believe are subject to the TCA. In May 2016, the FDA issued the Deeming Rule to determine which novel products would be subject to the TCA.
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The FDA has specifically stated what they consider to be the ENDS under the TCA definition of “Tobacco Products”. This FDA interpretation excludes CBD, THC or other cannabis derivatives as the FDA lacks the competence to regulate such products under the TCA. The FDA specifically defines ENDS in enforcement guidelines:
Electronic nicotine delivery systems (or ENDS) include devices, components, and / or parts that deliver aerosolized e-liquid when inhaled. For example, the FDA regards vapes or vape pens, personal vaporizers, e-cigarettes, cigalikes, e-pens, e-shisha, e-cigars and e-pipes as the END.
The FDA further states that e-liquids generally refer to “nicotine-containing liquids and nicotine-containing e-liquids (liquids combined with flavors, colors, and other ingredients)”. If a vaporizer product, component, or accessory: (1) does not emit aerosolized e-liquid when inhaled; (2) does not contain nicotine or any other material made or derived from tobacco; (3) it is not intended or reasonably expected to be used with or for human consumption of any tobacco product; and (4) is not derived or made from tobacco and is intended for human consumption, then the FDA does not consider this to be part of the definition of an ENDS product or tobacco product as a whole. In contrast to the amended PACT Act, ENDS – within the meaning of the TCA and Deeming Rule – does not include steam devices and accessories that are used with “other substances” that do not contain nicotine or tobacco.
Photo by Khwanchai Phanthong from Pexels
READING FINE PRINT
The inclusion of the term “other substances” in ENDS ‘PACT Act definition was likely intended by its authors to cover formulations of tobacco or nicotine containing e-liquids that sophisticated tobacco industry lawyers would claim were out of scope the FDA under the FDA lie TCA. The steam market is very popular with young people, and the entire premise of the PACT Act is to prevent underage tobacco sales and the avoidance of tobacco taxes. ENDS ‘PACT Act definition goes beyond the ENDS TCA definition, and it appears that lawmakers wanted to target the e-cigarette industry. However, the legislature has not read the fine print because the ENDS definition it has developed is completely in contradiction to the FDA’s Deeming rule.
RELATED: What’s the Real Reason the USPS Doesn’t Ship Vaping Products?
The cannabis vaporizer community could argue that the ENDS definition contained in the PACT Act does not cover products that are reasonably expected to be used with cannabis or its derivatives, including THC, CBD, and hemp-derived products. These products are not expected to be used for human consumption of any tobacco product.
The amended PACT Act specifically does not change the FDCA, which contains the TCA, indicating that the addition of “any other substance” to the definition of ENDS was likely not intended to include non-nicotine and non-tobacco products such as Capture cannabis.
If lawmakers really intended to change the way the federal government defined ENDS to include non-tobacco and non-nicotine products, it is reasonable to assume that Congress would also have changed the TCA to accommodate the FDA allow the regulation of these other substances. The future strategy should be to encourage USPS to focus specifically on the ENDS market due to the relationship with nicotine and tobacco as this is required by law and approved by PACT law and everything that is done regarding cannabis or hemp will, seriously, should be challenged by the industry.
Emily is a recognized expert on legal, regulatory and policy issues related to cannabis and has worked with a wide variety of individuals and organizations in both the public and private sectors. You can contact Emily at info @or (503) 488-5424.
This article originally appeared in the Green Light Law Group and was republished with permission.