USPS Releases Final Rule Regarding Mailing Of Hemp, CBD And Marijuana Vapes

The Postal Service revises its regulations in Publication 52, Hazardous, Restricted, and Perishable Mail, to incorporate new statutory restrictions on the mailing of electronic nicotine delivery systems. Like cigarettes and smokeless tobacco, such items are generally nonmailable.

This rule is effective October 21, 2021.

The U.S. Postal Service released its final rule regarding the mailing of vapes, asserting that even if the devices are made for federally legal hemp products like CBD largely cannot be shipped via the U.S. mail.

The U.S. Postal Service has been progressing and preparing the regulations to obey the House and Senate who passed a bill last year that included a provision to restrict how electronic cigarettes can be sold online and shipped which will most likely affect marijuana too. There are certain exceptions in the regulation, but many investors are disappointed.

The USPS justified in the rule, that by the letter of the law, that includes hemp and marijuana vapes. “It goes without saying that marijuana, hemp, and their derivatives are substances,” the agency 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 POSECCA (Preventing Online Sales of E-Cigarettes to Children Act ) scope.”

Others argue that the USPS should not levy the restriction on cannabis because the ban might conflict with state marijuana laws or because Congress has supported legislation that prohibits the use of Justice Department funds for interfering in medical cannabis programs where it is legal.

The USPS stated

1) it’s part of the federal government and is, therefore, unaffected by state or local marijuana policies and

2) it’s not part of the Justice Department, which is the only branch of the government restricted by the state protection rider in appropriations legislation.

The agency further clarified that hemp containing up to 0.3 percent THC is federally legal and is generally mailable, but only “to the extent that they are not incorporated into an ENDS (electronic nicotine delivery systems) product or function as a component of one.” As such, while business can generally mail out legal hemp-derived products, that’s only the case if they are not vaping products covered under the new law.

“The POSECCA (Preventing Online Sales of E-Cigarettes to Children Act) and the Agriculture Improvement Act overlap, but they do not conflict. The Agriculture Improvement Act merely excludes certain products from the CSA. It does not affirmatively declare hemp and hemp derivatives to be mailable in any and all circumstances, superseding all other relevant laws (such as the POSECCA). For its part, the POSECCA restricts the mailability of only certain hemp-based and related products; hemp-based non-ENDS products are unaffected, as are ENDS products falling within one of the PACT Act’s exceptions. That Congress has rendered some subset of a class of goods to be nonmailable while leaving the remainder mailable is not some sort of legal conflict, but, rather, how mailability regulation typically works.”

There are limited exceptions to the new mailing rule. Vapes can be shipped within the states of Alaska and Hawaii; verified businesses can mail vapes between each other or to government agencies; companies can send products for consumer testing or public health purposes; and individuals can ship up to 10 ENDS for non-commercial use per 30-day period. Beyond that, it is generally prohibited for a company to send a vaping device to a consumer via U.S. mail.

Some argued that CBD products could fall under the health exemption to the general ban, but USPS said that would not apply unless and until the Food and Drug Administration (FDA) approves any such products.

“The FDA likewise has not approved any ENDS (electronic nicotine delivery systems) product for therapeutic delivery of any non-nicotine substance.”