USPS Bans Nicotine and Cannabis Devices from Being Shipped Through Mail

The United States Postal Service (USPS) released the details of its final rule on the shipment of nicotine devices, which also includes cannabis vape devices, immediately prohibiting them from being shipped through USPS mail services.

The USPS announced on October 20 that starting today, it will no longer allow the shipment of nicotine vape pens, which also applies to vape pens that contain hemp, CBD or cannabis. This final ruling is a verdict that has been a work in progress since earlier this year. The USPS announced in April 2021 that it was seeking to alter its rules to prevent the shipment of vape pens, in conjunction with a congressional bill provision passed in December 2020. The goal of the bill, referred to as the Preventing Online Sales of E-Cigarettes to Children Act (POSECCA), is to prevent vaping devices from getting into the possession of minors and to decrease lung damage caused by vapes. However, due to the language of the bill, cannabis is included in this as well.

In a Federal Register article entitled “Treatment of E-Cigarettes in the Mail” published on October 21, the agency points out that the word “substances” applies to more than nicotine. “As discussed further in section III.D.1.i, notwithstanding Congress’s use of ‘nicotine’ in the term ‘electronic nicotine delivery systems,’ the plain language of the POSECCA definition makes clear that nonmailable ENDS products include those containing or used with not only nicotine, but also ‘flavor[ ] or any other substance,’” the article states. “It goes without saying that marijuana, hemp, and their derivatives are substances. 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 POSECCA’s scope.”

The USPS invited the public to comment on this topic, in which the article states that 15,700 comments were submitted. There were many arguments presented that the final rule should not restrict cannabis products, however the agency directly addresses these concerns regarding why its inclusion of cannabis as an electronic nicotine delivery systems, or “ENDS product,” is necessary. “Thus, ENDS products containing or used with THC (e.g., THC-containing liquids, cannabis waxes, dry cannabis herbal matter) are already nonmailable under the CSA. Congress’s decision to keep such items out of the Federal postal network does not bear on whether their use or exchange violates State or local law. Nor does it alter whether the Department of Justice—a Federal entity independent of the Postal Service—may use its appropriated funds to interfere with the operation of State or local laws.”

The USPS does note that shipping hemp that contains less than 0.3 percent THC is still federally legal, so long as it is not included in a vaping product. The agency also notes that there are other exclusions to this new rule:

• Intra-Alaska and Intra-Hawaii Mailings: Intrastate shipments within Alaska or Hawaii;
• Business/Regulatory Purposes: Shipments between verified and authorized tobacco-industry businesses for business purposes, or between such businesses and federal or state agencies for regulatory purposes;
• Certain Individuals: Lightweight, noncommercial shipments by adult individuals, limited to 10 shipments per 30-day period;
• Consumer Testing: Limited shipments of cigarettes sent by verified and authorized manufacturers to adult smokers for consumer testing purposes; and
• Public Health: Limited shipments of cigarettes by federal agencies for public health purposes under similar rules applied to manufacturers conducting consumer testing.

One commenter questioned the enforceability of this new rule, suggesting that vendors might send products below the weight threshold to avoid detection. USPS replied that the commenter’s assumptions on this matter were false. “First, there is no weight threshold for Postal Service enforcement of mailability; the Postal Service can and does enforce mailability laws regardless of weight, shape, or other mailpiece characteristics,” the article states. “Second, a vendor that does not advertise its sales is unlikely to remain a vendor for long. Third, the presence of identifying markings is not a prerequisite for detection of nonmailable matter; indeed, few shippers of the substantial quantities of nonmailable contraband detected by the Postal Inspection Service and its Federal law-enforcement partners transparently indicate the illicit contents that they are shipping.”