Reed Smith Client Alert

Thinking of mailing CBD? Think again. The United States Postal Service (USPS) recently published a rule restricting the mailing of CBD vapes, among other products, deeming them generally “nonmailable”1 – meaning that USPS cannot accept them for delivery or transmit them through the mail.2 While there are exceptions to the rule,3 the shipping of CBD vapes to consumers for commercial purposes does not fall within the exceptions.

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