New Vaping Bill; PACT Act Explained

The vape industry has had a rough road over the past year and a half. If you think back to late summer 2019, you’ll recall the EVALI (e-cigarette or vaping use-associate lung injury) scare that was largely linked to black market cannabis vape cartridges diluted with vitamin e acetate.

As of mid-February 2020 saw 2,807 hospitalized and 68 people dead in 29 states and the District of Columbia.

EVALI peaked in September 2019, but six short months later, the coronavirus pandemic took hold across the globe and healthcare practitioners warned of the dangers of vaping that COVID-19 could exacerbate (and vice versa). Research led by Dongmei Li, Ph.D at the University of Rochester and published by Preventive Medicine found that states with more vapers had larger numbers of daily coronavirus cases and deaths, especially in the early weeks of the pandemic. While the study did not address cannabis vaping specifically, the health risks of smoking and vaping are well-known.

As businesses across the country closed their doors to customers before cannabis dispensaries were deemed essential businesses on a state-by-state basis, dispensaries took a financial hit until they received guidance from the CDC (Centers for Disease Control) on how to re-open safely and with modifications to adhere to COVID guidelines.

Now there is yet one more obstacle for the vaping industry to overcome. At the end of December, 2020, former President Trump signed into law S 1253, the “Preventing Online Sales of E-Cigarettes to Children Act,” which, as of April 5, 2021, bans all shipments of vaping products through the USPS (United States Postal Service) and requires private delivery services such as DHL, FedEx, and UPS to check recipient IDs and obtain the signature of an adult at the point of delivery. Additionally, vaping firms will have to register with the U.S. attorney general and implement an age verification service.

Even though the shipment of vaping products through private delivery services is still allowed, both FedEx and UPS have indicated that they will follow the lead of the USPS. Additionally, under the law B2B shipping of vaping products is still allowed through USPS.

Tucked into the December 2020 appropriations bill to keep the government running, S 1253 does much more than prevent the online sales of e-cigarettes. It effectively broadens the definition of Electronic Nicotine Delivery Systems (ENDS) to include vaping products, liquids, and components regardless of whether they contain nicotine or not. Though hemp and cannabis were not explicitly mentioned in the bill, it is tacitly assumed since cannabis vapes are composed of the same parts.

More specifically, ENDS products are now defined as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device, including an e-cigarette, e-hookah, e-cigar, a vape pen, and advanced refillable personal vaporizer, an electronic pipe, and any component, liquid, part, or accessory of a device without regard to whether the component, liquid, part, or accessory is sold separately from the device.” In other words, this broader definition de facto includes CBD, THC, and hemp vape pens and other devices.

The USPS has a 120 day period to issue new rules, which gives cannabis businesses some time to familiarize themselves with how the new law will affect them and to plan compliance. Violation of the law can include up to three years in prison, though the more likely scenario for a company is to face stiff fines or be shut down for noncompliance.

Vape industry insiders do not believe that the new law is intended to further stigmatize the cannabis industry and consumers, but S 123 ensnares cannabis businesses nonetheless. Others in the industry are hoping that the 120 day period will provide an opening for businesses to comment to the USPS – on the off chance that the upcoming rules will be more favorable – and engage with the many state tax authorities to determine necessary compliance.

The bottom line for consumers is that having vape products shipped is bound to get more expensive since it must now come through a private delivery service, and less convenient because your signature is now required for product release.

With EVALI, we saw that vapes purchased from the illicit market posed dangerous risks, and bad actors are still operating in the vape industry. Today there is a new law that makes it more difficult for legit vape businesses – who must adhere to rigorous legal and testing standards – to ship to customers. All the more reason to stop in and support your local, licensed dispensary with your business. And don’t forget to look for the COA (Certificate of Analysis) to make sure the product is safe.