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Vape Mail Ban 2021

by Robert Taney on October 28, 2021

The PACT Act vape mail ban denies legal age vapers access to the e-liquid flavors and vaping devices they prefer.

Responding to the Vape Mail Ban

Mad Vapes is working with regional and specialty to carriers to expand our shipping network. Orders may now take up to 14 days to receive and not all areas of the country will be initially covered.

We will continue to add new regions and look forward to providing our loyal customers with the same great service and value that they have come to expect. Subscribing to our newsletter or checking in for updates is the best way to stay apprised of the status of your area. We will provide status updates.

USPS Vape Mail Ban

As of October 20, 2021, the United States Postal Service will no longer ship vape products. The PACT Act, an acronym for the misleadingly titled Prevent All Cigarette Trafficking Act, prohibits the shipping of electronic nicotine delivery systems (ENDS) devices and e-liquid products through USPS.

The stated goal of the PACT Act was to prevent all cigarette trafficking. Whether intended or not, the result is a mail ban that threatens the viability of the independent vaping industry and might just help boost combustible cigarette sales.

The small, independent businesses in the vaping industry have suffered a grievous blow that primarily impacts adult vapers and smokers seeking options other than combustible cigarettes.

One of former FDA commissioner Scott Gottlieb’s most overlooked comments is that it would be a net gain in all cigarette smokers switched to an ENDS.

PACT Act

The PACT Act was passed by Congress in late 2021 as part of the massive Covid Relief Act. Preventing online sales to minors is certainly an admirable goal but Congress went far beyond that.

Known as the Consolidated Appropriations Act of 2021, it was an omnibus bill which included a lot more than just pandemic relief. The bill provided political cover for passing laws which might not have a chance independently but were not so important that any politician would be willing to stall the passage over.

The wealthy quit smoking decades ago, which is one reason bills like this pass with so little resistance. Alcohol on the other hand remains popular than those in higher income bracket. Underage drinking sends 130,000 minors to the emergency room annually and kills 3500 according to the CDC.

Other Restrictions

While the mail ban is the component most visible to consumers, several other restrictions are also included in bill.

The most notable and first changes to take effect were updates to the Jenkins Act. The 1949 Jenkins Act is a federal law which requires any party that sells and ships cigarettes across state lines to an unlicensed party or distributor to report the sale to the tobacco tax administrator in the buyer’s state.

The Appropriations Act amended the Jenkins Act to include electronic nicotine delivery systems (ENDS). An ENDS was defined as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.” No exception was made for CBD or similar products. Perhaps understandably, considering the grey area of their legality at the state and federal level.

The rewritten law covers e-cigarettes, e-hookahs, pens, disposables, pods, liquid, parts, and accessories. Even components sold separately are covered. There are no exemptions for hemp, medical marijuana, or CBD.

Taxes and Penalties

With vapes now subject to the PACT Act and Jenkins act, online retailers must comply with the following restrictions:

  • Register with the US Attorney General.
  • Verify age of customers using a commercially available database.
  • Use private shippers that collect an adult signature at the point of delivery.
  • Register with the federal government and with state tobacco tax administrators if selling in states that tax vaping products.
  • Collect all applicable local and state taxes and affix any required tax stamps to the products sold.
  • Send each taxing state’s tax administrator a list of all transactions with buyers in their state. This includes the names and addresses of each customer sold to, the quantities and types of each product sold.
  • Maintain records for five years of any “delivery interrupted because the carrier or service determines or has reason to believe that the person ordering the delivery is in violation of the law.”
  • Shipments cannot exceed 10 pounds
  • All packages be marked that they contain cigarettes.

Vape companies who do not register, pay all appropriate excise taxes, or comply with the shipping and reporting rules of the law are subject to severe penalties, including up to three years in prison.

Increased Cost to Online Retailers

The Jenkins Act rules being applied to vape products will hit online retailers in the pocketbook due to the increased logistical and administrative burden.

Registering with states, ironing out the logistics with regional carriers, navigating the PMTA process, and keeping apprised of constantly changing state laws costs money.

Such obstacles are easy for a Big Tobacco partner like Juul, RJ Reynolds Vuse or MyBlu to figure out. And online sales are not a crucial part of their business model. They dominate the shelves. For many small vaping businesses, these obstacles proved insurmountable, and they closed their doors.

Increased Cost to Consumers

The application of cigarette taxes on all vapes will hurt the consumer. Providing an incentive to switch back to combustible cigarettes and driving all vape manufacturers not owned by Big Tobacco companies out of business was presumably not a goal of the law.

But the reality is that it serves as a de facto ban on vapes for anyone who does not have access to a brick and mortar vape shop or does not want to purchase prefilled, tobacco flavored vape pods and e-cigarettes manufactured by companies like Altria and RJ Reynolds.

Reduced Access for Marginalized Vapers

There is also the issue of access to vapes. There are many areas in the US that due to population density and location are simply not going to be covered by regional carriers. USPS is the only option for these zip codes. Mail service in remote areas is often centralized in PO Boxes that regional carriers, UPS and even FedEx cannot access. The population is not large enough to support a local business that sells the e-liquids and hardware of independent manufacturers.

smokers by age
smokers by age

Underserved rural communities historically have higher rates of smoking and lung cancer deaths than urban areas, the most remote of these areas will be difficult to serve but we are exploring every option.

Adult Signature Required

Before the passing of the final rule of the USPS vape mail ban, a person over 21 had to be present to sign for every e-juice and hardware order. Continuing USPS service but requiring that someone over 21 signs for an order would have been a less onerous restriction that effectively would have removed any possibility of the online sales of e-cigarettes to children.

why kids vape
reasons minors vape

A revised Preventing the Sale of E-Cigarettes to Children Act is surely out of the question in the current political environment. Anti-vaping advocates are simply too well-funded by Michael Bloomberg and completely invested in their narrative that the e-juice flavors most popular with adults are targeting children. They point to nostalgic packaging and flavor profiles, that on occasion recall 1980s cereal and candy flavors, as evidence.

The tobacco lobby too strong and the wealthy too indifferent to the plight of smokers and vapers for a sweeping legal reprieve. For anyone who lives in a remote rural area and uses an e-cig rather than a combustible cigarette product, they have nowhere to send their business buy back to the tobacco industry. A black October indeed.

Tobacco 21

In October 2020, there were rumblings that the age for purchasing any tobacco product, and that is what e-liquids are currently classified as, in the US would be raised to 21.

By December 2020, the outline of this plan was clear. CDC research had demonstrated that most minors who vaped were obtaining their products from peers just over the age of 18 and not yet 21.

This is the same CDC study that found flavors were not the primary driver of underage use. The Youth Tobacco Survey was released months behind schedule, possibly because it did not deliver the results that anti-vapers wanted?

In any event, the attacks on characterizing flavors continues unabated and still unsubstantiated.

While businesses were blamed for selling to minors, it was siblings and friends who were snapping up products like the popular Juul Mint pod and selling them to high school students.

USPS orders were not a major conduit, since the by far the most popular product with minors was the Juul prefilled vape pod system and this was sold mostly at convenience stores and gas stations.

Ban on Prefilled Pod Flavors

The Tobacco 21 laws were followed closely by a ban on flavored prefilled vape pods. This rule removed all but tobacco flavors from the menu of prefilled pods. Businesses that manufactured old fashioned prefilled cig-a-like cartomizers were also hit by this rule, despite having the oldest customer base in the market. The result was that legacy businesses with older clientele were driven out of business.

Tobacco 21 and the ban on vape pod flavors were logical responses if you were to believe teenage vaping was epidemic that had to be addressed at the expense of adults.

Compare the socio-economic class of the children featured in the anecdotes describing teen vaping outlined in this Wall Street Journal article to the typical smoker seeking an ash free alternative in the sweet fruit and beverage flavors they prefer.

The laundry list of restrictions, rules, and laws on vapes is proof of who has sway and is calling the shots in a “democracy”. Mad Vapes has no interest in selling to minors and has always viewed underage use as an existential threat.

The efforts by the Food and Drug Administration succeeded in reducing the teen vaping rate before the vape mail ban. Reputable businesses were already carding and age verifying with the same cutting-edge software that the firearms industry uses. The illegal and morally dubious practice of intentionally selling products to minors was never something the industry pursued. The assumption that the vape companies were not acting is good faith was simply presented as fact by rabid anti-vaping activists whose goal is enforced nicotine abstinence.

It is interesting to ponder how well received a program of total abstinence would be for any other risky adult behavior other than vaping.

Cannabis and the PACT Act

The ban on mailing vaping products through the US postal service delivery system has been known for nearly a year but only started took hold in October.

Whatever their intended goal, the federal law also swept up the much more politically popular hemp and cannabis industries as well. Due to investments in hemp and a generally distaste for the war on drugs, THC products seem to be held in higher regard than nicotine. How long this remains the case remains to be seen.

While the onerous state level tax regulations, related to the Jenkins Act, are not uniformly applied upon nicotine and cannabis, the actual ban on mailing vaping products does impact the sale of marijuana derived products.

The cannabis industry has much stronger political backing than the nicotine vaping industry. When the PACT Act passed by Congress, the myriad interests of the cannabis industry did not foresee getting entangled in the federal crackdown on nicotine vapes. This resulted in the PACT Act being delayed until October, even though it was signed last year.

With United States Postal Service delivery services no longer available to online vape stores, Congress has prevented online sales to legal age vapers who are seeking smoke and ash free combustible cigarette alternatives.

Fed-Ex and UPS

A ban on shipments of ENDS devices and nicotine e-liquids was instituted by FedEx and UPS earlier this year. The loss of their competitively priced shipping services immediately removed fast and competitive shipping options. These private delivery companies have logistical networks that spread worldwide, and this represented a major blow to online retailers.

Starting on April 5, 2021, UPS “will not transport vaping products to, from, or within the United States due to the increased complexity to ship those products.”

FedEx ended vaping shipments on March 1, 2021. They refuse to ship any tobacco products or electronic cigarettes.

This leaves manufacturers of hemp vapor products with fewer options for shipping their goods to consumers. And even when nicotine, hemp or CBD vapor product manufacturer finds a shipping company to ship its products to consumers (which is likely to be prohibitively expensive given that USPS, UPS, and FedEx are no longer options), the manufacturer still must comply with the stringent rules of the PACT Act.

Private Shipping

During the ten months between the passage of the PACT Act the USPS implementing the final rule for implementation, Mad Vapes has been hard at work developing a network of regional carriers to meet the needs of their customers. These specialty delivery services will eventually cover much of the country, but many zip codes will not be able to receive shipments.

It is likely that the bill will have unintended consequences. Adult consumers who had switched to nicotine e-liquids now may only have cigarettes as an option. We are working hard to expand our private delivery network and look forward to serving you again.

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