It’s an uncertain time for those who vape. Changes passed at the end of 2020 to The Preventing Online Sales of E-Cigarettes to Children (PACT) Act have left many vape retailers fighting to survive in a future where their products will not be deliverable by the United States Postal Service. While many can agree that the intention of the law is good, preventing children from gaining access to tobacco products through online sales that bypass in person age verification, putting key elements of the law into practical practice has not been entirely smooth.
What do the changes mean for those who purchase vaping products online? Well, that all depends on what products you are purchasing, how the company that you are purchasing from is interpreting the changes, and quite honestly a myriad of other factors.
Before we take a closer look at the changes themselves and why this is such an important change for consumers to be aware of we will address the latest developments that have worried many businesses and consumers. USPS has now missed their deadline (April 26, 2021) to update delivery regulations surrounding these products. As of this writing it is unclear when they will make the changes and begin to cease delivery of electronic nicotine delivery systems. Once that date has been set the restrictions will be in effect.
The act was signed into law on December 27, 2020 as an amendment to the 2009 PACT Act and can be found updated in the Jenkins Act of October 19, 1949 which was initially crafted to assist states in collecting sales and use tax on cigarettes.
The PACT Act was created to restrict the delivery of cigarettes to consumers (specifically those who are not of the legal age to purchase such products) and was directed to traditional methods of consuming tobacco that were prevalent at the time. Through the 2020 amendment the definition of cigarette has changed to include “electronic nicotine delivery system” or ENDS which is further defined in a way that includes a much broader array of products.
The definition reads in part: “any electronic device that, through an aerosolized solution, delivers nicotine flavor, or any other substance to the user inhaling the device.” This includes basic devices; e-cigarette, e-hookah, e-cigar, vape pen, refillable personal vaporizer and any electronic pipe. The surprising device inclusion that is leading to heightened confusion and headaches for businesses and customers is “...any component, liquid, part, or accessory of a device described in subparagraph (A) without regard to whether the component, liquid, part, or accessory sold separately from the device.” As a point of clarification this DOES NOT include any products that have been FDA approved for smoking cessation or other therapeutic purposes.
USPS did issue a proposed rule in February 2021 that would apply the current shipping exceptions to ENDS:
- Intrastate shipping within Alaska and Hawaii
- Shipments between businesses engaged in tobacco product manufacturing, distribution, wholesale, expost, import, testing, investigation, or research
- Individual shipments for noncommercial purposes (returning goods to a manufacturer)
- Limited shipments by federal agencies for public health purposes
The proposed rule did not allow for limited shipments to adult consumers for testing purposes and will not allow for international shipping.
Major U.S. shipping companies have already announced their intent to stop accepting vaping products or have already stopped such shipments altogether. The top three carriers (UPS, FedEx and DHL) have made adjustments to their company policies to reflect the changes to the law and the anticipated changes from USPS, some even using language straight from the law to shape their policies surrounding the issue.
UPS: “Vaping Products are considered Tobacco Products for the purpose of this policy. UPS no longer accepts for U.S. domestic shipment, including import and export into or from the U.S., any Vaping Product, including but not limited to e-cigarette devices and e-liquids or gels, regardless of nicotine content, even if a Shipper or consignee is permitted to ship and receive Vaping Products under applicable laws or regulations.
For purposes of UPS’s policy on shipment of Tobacco Products, the following definitions apply:
“Vaping Product” means any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device, including but not limited to e-cigarettes, e-hookahs, e-cigars, vape pens, advanced refillable personal vaporizers, electronic pipes, as well as any component, liquid, gel, part, or accessory of such device, without regard to whether the component, liquid, gel, part, or accessory is sold separately from the device.”
FedEx: “Tobacco shipping is prohibited. We prohibit the shipping of tobacco and tobacco products. Even if you have proper licenses and are authorized to ship tobacco products, we will be unable to accept your shipment. Tobacco and all tobacco products cannot be accepted at any FedEx or FedEx Office location. This includes but is not limited to:
- Loose tobacco
- Smokeless tobacco
- Hooka or shisha
DHL: “Prohibited Commodities: Any item(s), the carriage of which is prohibited by any law,
regulation or statute of any federal, state or local government to or through which the shipment may be carried.
Tobacco Products: Domestic (USA) restricted (shipments of cigarettes to individual
consumers is prohibited). Adult signature required. Outside the U.S. many countries have specific import restrictions. Please contact Customer Service at 800-CALL DHL for details.”
The law outlines compliance requirements that are extensive in their scope and for some businesses who sell non tobacco products many of the steps may be impossible to fulfill and remain in business due to the difference in federal and state laws.
The bottom line: Keep a close eye on the industry if you are a vape enthusiast and be ready for changes. The shipping issue will not only affect whether you will be able to order some of your favorite vaping products online as a consumer, but also whether companies can ship goods and supplies from manufacturing facilities to storefronts (where age verification is required prior to purchase).