WHAT IS THE VAPE MAIL BAN?

Former President Trump signed the 2021 Appropriations bill into law on Dec 27, 2020. Included in that 5,000+ page bill was language that adds “electronic nicotine delivery systems” (or “ENDS”) to shipping regulations enacted by The Jenkins Act and The Prevent All Cigarette Trafficking Act (PACT Act). The practical effect of the new law is a ban on shipping vapor products through the USPS. 

Complicating matters, even if small, independent vapor retailers find carriers willing to ship their products to consumers, the compliance issues are likely beyond their means. For example, the law requires sellers to be compliant with state, local, and tribal tax laws that are inconsistent across the country and subject to change on an unpredictable basis. Currently, the human and technological resources required to fulfil these requirements are only affordable by the largest companies. Complying with federal law means that tobacco products being shipped require market authorization from the FDA, and a way for shipping companies to verify that a product and its manufacturer meet this requirement. 

The net effect of the new regulations is a ban on most direct to consumer shipments of vapor products (which is a broader category than just those associated with nicotine).

On February 19, 2021, the USPS published in the Federal Register a proposed rule, which is necessary to carry out the new law. The public is invited to review and comment on the rule until March 22, 2021. While it’s true that comments submitted to USPS about the shipping ban are unlikely to change the outcome or alter the policy, USPS is seeking input from the public on a few key issues:

WHY SUBMIT IF IT WON'T CHANGE ANYTHING?

There is a critical flaw in the new rule that must be highlighted repeatedly: Congress does not understand the products or the stakeholders affected by this regulation (which is one reason why it granted the authority to regulate tobacco and nicotine to the FDA). This being the case, new laws restricting access to safer nicotine and tobacco products are likely to fall short of their stated goals. In a worst case scenario (like the one we’re living in now), the new regulations inflict immediate injury and lasting harm. 

The USPS is genuinely seeking feedback and suggestions regarding unforeseen and unavoidable consequences that may result from the new rule. There are questions of accuracy involving language and weights-and-measures, as well as how USPS will determine which packages to reject. Although answers to these questions may not change the ban on shipments of vapor products to consumers, it is vital that we are engaged. 

Sharing your experience with switching to vaping or other smoke-free products provides context for officials that isn’t shown in “the data” or offered by supporters of harsh regulations. Your comments add weight to the evidence showing how successful safer alternatives to smoking can be – given the right balance of control and access. Just as this is true for your comment to the USPS, it applies to all opportunities for sharing your experience to a permanent, official record.

HOW CAN YOU GET INVOLVED?