Background
The new USPS rule stems from authority provided under a federal law passed in 2020, which requires USPS to create regulations clarifying the mailability of “electronic nicotine delivery systems” (ENDS).4 The federal law defines ENDS as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.”5 Such devices include e-cigarettes and vape pens.6 In its rule, USPS interprets the statutory definition of ENDS – primarily, the catch-all phrase of “any other substance” – to include electronic devices that deliver cannabis, hemp, and CBD,7 thus making these products nonmailable under the final rule.
Conflicts
The new rule comes as a surprise in light of recent legislative movement toward decriminalization of cannabis and the federal legalization of industrial hemp-derived CBD. Particularly, public commenters expressed concern that the final rule may conflict with the federal Agriculture Improvement Act of 2018 (Farm Bill), which removed hemp and CBD containing less than 0.3 percent THC from controlled substance scheduling.8
USPS argues that its final rule and the Farm Bill do not conflict, but only overlap in subject matter.9 The Farm Bill excludes hemp and CBD from the federal government’s definition of “marihuana,” however, it does not explicitly authorize the mailing of hemp and CBD in any form.10 The USPS rule, on the other hand, regulates the mailing of only some hemp and CBD products – electronic vapes containing no more than .3 percent THC.11 As USPS explains, this is how mailability regulation operates: Congress categorizes classes of goods that are mailable and nonmailable.12 In this case, CBD vapes are nonmailable, and CBD non-vape products are mailable.
Similarly, commenters have expressed concern that the USPS rule conflicts with states that have legalized recreational or medicinal cannabis.13 USPS dispenses of this argument, concluding that no such conflict exists,14 because cannabis remains nonmailable due to its federal scheduling as a controlled substance.15 This is true regardless of whether cannabis is being shipped to or from a state that has decriminalized its use.16 As such, even a qualified shipper, under the agency’s rule, is prohibited from shipping ENDS containing cannabis with more than .3 percent THC.17
Guidance
In light of this rule, clients should evaluate the products they currently ship via USPS. Companies that currently mail, or plan to mail, CBD electronic vapes via USPS are now prohibited from doing so. Instead, these companies should seek to ship their products via a private courier that allows such shipments.18
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- Treatment of E-Cigarettes in the Mail, 39 C.F.R. parts 111 and 211 (2021).
- Id. at 12.
- Id. at 4.
- Preventing Online Sales of E-Cigarettes to Children Act, S.1253, 116th Cong. § 3(a) (2020).
- Id. § (2)(a)(7)(A).
- Id. § 2(a)(7)(B)(i)–(iv) (2020).
- 39 C.F.R. parts 111 and 211 at 27.
- Id. at 26.
- Id. at 28.
- Id.
- Id.
- Id. at 29.
- Id. at 26.
- Id. at 27.
- Id. at 27.
- Id.
- Id. at 28.
- Kyle Jaeger, “USPS Releases Final Rule Banning Mailing of Hemp, CBD and Marijuana Vapes,” Marijuana Moment (Oct. 20, 2021) (“By preventing vape manufacturers and retailers from utilizing USPS to ship their goods, the regulations will effectively force them to use more expensive private courier services . . .”).
Client Alert 2021-295
