As we have previously described, on December 27, 2020, Congress amended the Protect against All Cigarette Trafficking (PACT) Act to implement to e-cigarettes and all vaping solutions (referred to in the legislation collectively as “Electronic Nicotine Supply Systems” or “ENDS”).  Below the amended PACT Act, these products and solutions are matter to the similar federal and point out registration, reporting specifications, and shipping and delivery limitations as traditional cigarettes, which includes the prohibition on the use of the United States Postal Provider (USPS) to deliver merchandise instantly to individuals.

The USPS has historically managed an exception to this ban for tobacco items “mailed only … for business enterprise needs between legally operating organizations that have all applicable Point out and Federal Federal government licenses or permits and are engaged in tobacco merchandise producing, distribution, wholesale, export, import, testing, investigation, or analysis …” (the “B2B Exception”) See 18 U.S.C. § 1716E(b)(3)(A)(i). In a proposed rule released on February 19, 2021, the USPS stated its intention to sustain this “business reasons exception” for Finishes.  Around 16,000 comments ended up received throughout the remark time period.

  • In advance of the remaining rule, on April 19, 2021, the USPS published assistance detailing the information necessary in an software for exception from the non-mailability provisions of the PACT Act for Ends products. The assistance signifies that the remaining rule is however envisioned to be released, and become right away helpful, on or about April 26, 2021 (i.e., 120 times right after the amendment was enacted).

  • Although the advice leaves it for the last rule to affirm whether or not, and less than what situation, the B2B Exception will basically utilize to Finishes, it offers information about the scope of data that may possibly be demanded in B2B Exception programs. The steering does point out, however, that “[w]hether any Finishes mailers might eventually be allowed to use the exceptions stays to be established.”

  • Though the advice states that the Company will not take programs prior to the publication of the closing rule, the Company did incorporate potential recommendations for what to include in an software. The steerage endorses together with digital copies of all appropriate license and permit documentation for the applicant and for each individual addressee that they intend to ship to. The assistance also endorses organizations get started accumulating pertinent info now, and implies making ready a spreadsheet that consists of the following data with regard to each individual sender and each individual recipient:

    • Deal with

    • The Postal Service retail or small business mail acceptance workplace(s) the place each meant sender would tender shipments

    • The Postal Service retail business(s) in which just about every meant recipient would retrieve shipments

    • A description of the business enterprise or governmental entity (e.g., battery maker, retail store, wholesale distributor, screening laboratory)

    • For every single allow or license, the issuing jurisdiction the allow or license range the expiration day (if any) and the exercise included by just about every latest permit or license (e.g., basic organization operations sale or manufacture of tobacco products or Finishes)

    • The manufacturer identify and a description of each and every merchandise intended to be transported by each sender or to each and every addressee

    • No matter whether any discovered solutions or other intended shipments from just about every sender or to just about every addressee consist of lithium batteries, nicotine, CBD, or tetrahydrocannabinol (‘‘THC’’)

    • For merchandise made up of nicotine or THC, the meant amount of the product or service for each cargo and the concentration of nicotine or THC

    • For merchandise containing CBD with a THC concentration not exceeding .3 %, no matter whether the CBD derives from hemp

  • The steering also features suggestions relevant to entities that interact in tests, investigation, or study, as well as non-PACT Act prohibitions on the use of the U.S. mail applicable to CBD merchandise, harmful elements, and managed substances and drug paraphernalia.

  • In anticipation of the flood of any relevant exception applications that can be envisioned upon the publication of the final rule, the USPS regarded the need to ponder changes to its software course of action in the event that the exceptions are extended to Ends. In the end, the Company cautions that applicants ought to hope critique of their applications to have to have substantial processing time, as the critique needs for Ends sellers are likely to be considerably much more elaborate than for common cigarette and smokeless tobacco sellers.

It would behoove Ends makers and distributors relying on the mail (or DHL, FedEx or UPS) to deliver items to their small business companions to request out alternate shipping alternatives.


© 2021 Keller and Heckman LLP
National Regulation Critique, Volume XI, Number 113