Treatment of E-Cigarettes in the Mai

The rule by the postal service is a revision of the organization’s regulations that are contained in publication 52 which caters for Hazardous, Restricted, and Perishable Mail. The publication 39 CFR Parts 111 and 211 incorporates new legislations to control mailing of electronic nicotine. The rule was implemented on the 21st of October 2021. The official citation for the rule is 86 FR 58398 Page: 58398-58431 (34 pages).

Background

The postal service published a proposal that would prevent online sales of E-Cigarettes to children as stipulated in in the POSECCA, the act is referenced as public law 116-160. According to the POSECCA, electronic nicotine delivery systems (ENDS) are included in the definition of cigarettes, this means that ENDS are legislated by the Jenkins act which. After the implementation of the rule, ENDS became subject to separate rules, and exceptions applied on postal shipments in accordance to the definition in the Jenkins act.

The rule fits in the statutory framework that was established by public law 111-154, Prevent All Cigarette Trafficking Act of 2009 (“PACT Act”). The 2009 act provides for exceptions in the mailing of smokeless tobacco and cigarettes. The exceptions can be applied when the following circumstances are met:

The act allows mailing of ENDS in within the states of Alaska and Hawaii. The postal services can mail products that fall into the cigarette class in case the shipment is verified by authorized businesses in the tobacco industries or in case the shipment is between a verified business and a state or federal agency to be used in regulation. The postal services can allow non-commercial mailings done by adults; however, the shipment should be lightweight and should not exceed ten deliveries within a period of thirty days. According to PACT, any shipment of cigarettes found in the mail will be seized and forfeited. The individual responsible for mailing the cigarettes not covered by the stipulated exceptions will be subject to civil penalties, criminal fines, and punishment under respective federal, State, local, and Tribal laws.

Before the final rule, the postal service allowed public comments on the notice to help in considerations of the definition of ENDS, the rules to determine the mailability of a shipment, and the application of the exceptions listed by the PACT. The publisher received an excess of 15700 public comments, the comments were generated from letters and general opinions by ENDS users on their dissatisfaction with POSECCA.

Congress requires a notice for thirty days before the final rule as required by the Administrative Procedure Act (“APA”). In consideration of the comments, the postal service concluded that the proposal required further guidance to assist in the preparation of the final rule. The public comments received prompted the postal service to publish a guidance paper in April 2021; 86 FR 20287. The guidance document covered two topics; the first topic was a notice to the participants in the ENDS industry that the postal services would not be taking any exceptions in mailing until the issuance of the final rule on the treatment of E-cigarettes in the mail. The second notice also addressed the comments by ENDS industry participants, the service informed them that despite the impeding application of PACT act legislations, particular ENDS shipments would still be subject to other prohibitions and restrictions such as those controlling shipment of controlled substances such as cannabis.

SUMMARY OF THE FINAL RULE

According to the final rule, the postal service has the authority to create, amend and modify rules within the reasonable application of the conditions listed by the PACT Act. In accordance to the mandate given in the PACT act, the postal service rule determined that ENDS products cannot be shipped through mail except those that are exempted and meet the PACT related and non-PACT related regulations of mailability.

According to the rule, products that fall in the ENDS category are electronic devices that deliver nicotine through an aerosolized solution to an inhaler, any liquid, part, or accessory or component of an ENDS product falls in the nonmailable category even when sold separately. This definition of ENDS products was referenced from the Jenkins Acts enforced by the bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”); therefore, any questions on the mailability of a product can be addressed to ATF. The rule also covers congress recommendation that the ENDS products category should cover more than nicotine related use and incorporate nicotine flavor and other related substances.

According to POSECCA, any ENDS products that are approved by the Food and Drug Administration (“FDA”) in the USA are exempted from the mailing ban. The products can be approved for sale as tobacco cessation products or for use in therapeutic process; however, until the publication of the final rule, the FDA had not cleared any ENDS product for this category.

The rule does not affect previous legislations that covered inbound and outbound international mail. In the initial implementation of the PACT act, PACT exceptions did not apply to international mail or shipments to and from the Freely Associated States because the verification requisites cannot be met in an environment where the postal service has no direct interactions with the addressees and mailers. Therefore, despite the publication of a final rule on the treatment of e-cigarettes in mail, smokeless tobacco and all cigarettes will remain nonmailable and subject to no exception. Further consultations on the requirements of the PACT Act revealed that the mailing requirements cannot be met in overseas U.S. military postal addresses. Therefore, ENDS product will be ineligible for mailing to and from the military postal addresses.

RESPONSE TO COMMENTS

The public comments received were categorized the lack of policy discretion, constitutionality, and relation to other laws. Many commenters involved the publics benefits associated with ENDS products in their plea to the postal service not to subject the ENDS products to the PACT Act. The commenters rationalized that the ban would have adverse impacts on businesses which would cause an unanticipated and perverse disruptive effect to the economy and the public-health; however, the postal service concerns on the role that mails might play in giving the youths access to ENDS products motivated the ban.

The public comments proposed new alternatives to the ban on mailing ENDS products. They proposed that the service allow mailing of ENDS products and incorporate an age verification procedure to verify the age of the recipient. The comments proposed the ENDS product be allowed in the mails if they contained a warning. Other commenters proposed that the ENDS industry participants be left to self-regulation with a condition to verify the age of the products consumers. Other proposals involved the allowance of non-nicotine and one-time-use ENDS products. According to the response by the postal service, the arguments to eliminate or relax application of PACT act to ENDS product cannot be affected by the postal service whatever the merit of the ENDS product because that mandate falls to congress. The ability to implement the propositions is reserved to amendments by the congress which has not delegated that responsibility to the postal service.

Pro-ENDS comments proposed that the postal service should delay implementation of the mailing ban to allow a period of reprieve where participants can continue mailing ENDS products to allow segments of the participants in the industry to apply for authorizations that would place them in the category exempted from the ban. Unfortunately, Postal service lacks the mandate to delay the implementation. Section 603 (b) of POSECCA stipulates that the rules should come to effect on and after the date the final rule is published. Congress grants no authority to the postal service to defer from the requirements of POSECCA that the final rule should take immediate effect.

The comments requesting postal service to revise the products covered by ENDS product category prompted the postal service to include the scope products covered in the ENDS product category. The product in the category is defined by POSECCA; according to its definition, a product can be classified as an ENDS product even if it is does not contain nicotine. An item that can be used to deliver nicotine, liquids that contain no amount of nicotine together with accessories for use with these liquids can also be classified as ENDS. The ATF is mandated to provide the founding statutes of definitions relevant to the scope of the category. When there is doubt whether a product falls within the ENDS product category, the queries should be addressed to ATF.

Other information covered in the publication include legislations covering the mailing of marijuana, hemp derivatives and hemp. The rule also details the laws and scope of other products such as Heat-Not-Burn Cigarettes, aerosols, and natural and synthetic nicotine.