USPS is proposing a PACT Act compliance exception for shipping hemp and CBD products

Last month, I discussed my optimism about the shipability of vape products used for the consumption of hemp and CBD based on the principles of legal interpretation. This month, I am pleased to announce that the USPS has published a guidance document on the Federal Register indicating a likely exemption for hemp-derived CBD and other products lawfully manufactured under the Farm Bill Acts of 2014 and 2018 become.

The April 19, 2021 announcement indicated that the impending ban on vaporizer products would likely include an exemption procedure whereby individuals could continue to ship products that are otherwise exempt from PACT (Preventing All Cigarette Trafficking) compliance. The notice highlighted several issues related to the PACT Act exception procedure. First on the list is “CBD products”.

RELATED: It’s Much Harder Now Shipping Hemp and CBD Vapor Products

Photo by Maarten van den Heuvel via Unsplash

The notice states: “Mailers must maintain and prepare records to be available upon request to comply with all applicable federal, state and local laws regarding hemp production, processing, distribution and sales ensure, including the [2014 Farm Bill] and [2018 Farm Bill]”. The notice states that such records may include “laboratory test results, licenses and compliance reports”.

RELATED: PACT Act Update: USPS Delays Ban on Shipping Vape Products

The USPS guidance states that ENDS (Electronic Nicotine Delivery Systems) products used in conjunction with marijuana or cannabis plants containing more than 0.3% THC on a dry weight basis cannot be mailed if they are considered medicinal paraphernalia for purposes of the Controlled Substances Act (“CSA”). This is no surprise given that such a ban exists despite the PACT Act, but the CSA’s ban on drug paraphernalia does not apply to “anyone authorized to manufacture, possess, or distribute such items under local, state, or federal law. ”

It's now a lot harder to ship hemp and CBD vape productsPhoto by Obi Onyeador via Unsplash

In the case of medical and recreational cannabis states that deleted criminal laws punishing drug paraphernalia used to consume cannabis, anyone shipping from one legalized state to another would technically fall under the paraphernalia exemption and thus a legal basis for exemption from the requirements of the PACT Act.

RELATED: Vape Industry Under PACT Act Attack

The USPS is still in the process of finalizing the requirements for ENDS-related exception applications with an emphasis on efficiency as the USPS expects an enormous volume of exception requests. The good news, however, is that USPS has recognized that hemp and CBD products do not necessarily fall under the ENDS definition, although some have speculated that “other substances” should cover non-tobacco, non-nicotine-containing substances.

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While we will have to wait for the final rule to be released to know what the PACT exemption procedure will be, it is a good idea to check with a compliance process attorney beforehand to understand the upcoming regulatory changes prepare.

Emily Burns 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 @gl-lg.com or (503) 488-5424.

This article originally appeared in the Green Light Law Group and was republished with permission.

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