Effective March 27, 2021, the Preventing Online Sales of E-Cigarettes to Children Act (E-Cig Act) expands on existing legislation governing the shipment of cigarettes to impose restrictions on the shipment of “Electronic Nicotine Delivery Systems” (ENDS). Despite the E-Cig Act’s named purpose of preventing nicotine sales to children, however, it is not narrowly tailored to address either children or nicotine.
By April 26, 2021, the United States Postal Service (USPS) is to provide regulations clarifying the limitations on mailing of ENDS, and that such limitations shall take effect upon the release of these regulations. Existing USPS regulations prohibiting shipment of cigarettes and smokeless tobacco products specifically exempt shipments between verified and authorized tobacco industry businesses for business purposes, or between such businesses and federal or state agencies for regulatory purposes. Therefore, it is likely these exemptions will also extend to ENDS. However, traditional courier services such as FedEx, UPS and DHL have already announced policies prohibiting ENDS shipments completely. These policies have left businesses in the burgeoning vape pen industry, including those that sell devices, batteries, cartridges and fill material, struggling to find logistics solutions. We will continue to monitor this situation and be prepared to address questions about the USPS rules promulgation when it is released.