At the end of 2020, the U.S. Congress passed the PACT Act inside the spending bill containing the $600 stimulus check to citizens. Under the PACT Act, electronic nicotine delivery systems (ENDS) could no longer ship through the USPS. However, confusion followed 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.”
This definition left cannabis and hemp companies confused. The PACT Act intended to keep nicotine out of the hands of children. But the definition included “any other substances,” which could include hemp and cannabis. From December until the beginning of April when the PACT Act was set to begin, companies argued against the ban on cannabis and hemp products. For independent companies, like UPS and Fedex, they decided to ban the shipment of ENDS on their own to not add to the confusion.
In response, the USPS said they would take a look at the PACT Act and would make their own official statement when they finished their analysis. Until then, companies could still ship vaping products through USPS.
On October 21, the USPS announced their final rule regarding the PACT Act. They came to the conclusion that cannabis and hemp vapes and vaping products fall under the ENDS definition. Therefore, these products can no longer ship through the USPS.
Arguments
Between April and October 2021, the USPS heard arguments from cannabis and hemp companies on how the ban shouldn’t necessarily apply to their products. First, the mailing restriction shouldn’t happen because it would conflict with state and local laws. Additionally, Congress approved spending bills which prohibit the Justice Department funds from interfering with state-legal medical cannabis programs.
In response, USPS said that they are a federal organization, so they don’t have to follow state rules. Federal government rules rank above state rules. Second, the USPS isn’t a part of the Justice Department. Therefore, the USPS can interfere with state medical cannabis laws through shipping.
“It goes without saying that marijuana, hemp, and their derivatives are substances,” the USPS said. “Hence, to the extent that they may be delivered to an inhaling user through an aerosolized solution, they and the related delivery systems, parts, components, liquids, and accessories clearly fall within the [Preventing Online Sales of E-Cigarettes to Children Act’s] scope.”
Exceptions
There are always exceptions to the rules. 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. Finally, individuals can ship up to 10 ENDS for non-commercial use per 30 day-period. This is more so for those who create their own vapes and want use USPS for shipping their vapes to other people where they aren’t making a profit. If an individual purchases from a company, their product still can’t be shipped through USPS because it is for commercial intentions as the company is making money off of the sale and shipment. Otherwise, shipping vaping devices and other products remains banned through the USPS.
There are no rules for how the USPS will monitor what is being shipped and what the punishments or ramifications will be for breaking the federal law. However, hemp and cannabis companies should find other private shipping companies to work with. This may ultimately increase the price of products, which consumers could directly feel through increased prices on products and shipping.
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