Ahead of Final Rule, U.S. Postal Service Publishes Guidance Regarding Non-Mailability of Electronic Nicotine Delivery Systems

As we have previously reported, on December 27, 2020, Congress amended the Prevent All Cigarette Trafficking (PACT) Act to apply to e-cigarettes and all vaping products (referred to in the legislation collectively as “Electronic Nicotine Delivery Systems” or “ENDS”).  Under the amended PACT Act, these products are subject to the same federal and state registration, reporting requirements, and delivery restrictions as traditional cigarettes, including the prohibition on the use of the United States Postal Service (USPS) to deliver products directly to consumers.

The USPS has historically maintained an exception to this ban for tobacco products “mailed only … for business purposes between legally operating businesses that have all applicable State and Federal Government licenses or permits and are engaged in tobacco product manufacturing, distribution, wholesale, export, import, testing, investigation, or research …” (the “B2B Exception”) See 18 U.S.C. § 1716E(b)(3)(A)(i). In a proposed rule published on February 19, 2021, the USPS stated its intention to maintain this “business purposes exception” for ENDS.  Over 16,000 comments were received during the comment period.


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