USPS has acknowledged that hemp and CBD products will not necessarily fall under the definition of Electronic Nicotine Delivery System (ENDS), which are banned under the PACT Act.
Last month, I discussed my optimism regarding the mailability of vape products that are used for the consumption of hemp and CBD, based on principles of statutory interpretation. This month, I am happy to report that the USPS published a guidance document in the Federal Register that indicates a likely exception for hemp-derived CBD and other products that are produced lawfully pursuant to the 2014 and 2018 Farm Bill legislation.
The April 19, 2021 notice indicated that the forthcoming ban on vaporizer products would likely contain an exception process whereby individuals could continue to ship products that are otherwise exempt from PACT (Preventing All Cigarette Trafficking) Act compliance. The notice highlighted several issues related to the PACT Act exception process, and first on the list is “CBD Products.”
The notice indicates that “mailers must retain, and prepare to make available upon request, records establishing compliance with all applicable federal, state, and local laws pertaining to hemp production, processing, distribution, and sales, including the [2014 Farm Bill] and [2018 Farm Bill]”. The notice says such records may include “laboratory test results, licenses, and compliance reports.”
The USPS guidance document indicates that ENDS (Electronic Nicotine Delivery Systems) products used in connection with marijuana, or cannabis plants containing greater than 0.3% THC on a dry weight basis, would be non-mailable if they are deemed to be drug paraphernalia for purposes of the Controlled Substances Act (“CSA”). This is not a surprise, given that such a ban exists notwithstanding the PACT Act, but the CSA prohibition on drug paraphernalia does not apply to “any person authorized by local, State, or Federal law to manufacture, possess, or distribute such items.”
In the case of medical and recreational cannabis states that have removed criminal statutes penalizing drug paraphernalia used to consume cannabis, anyone who is shipping from one legalized state to another would technically fall under the paraphernalia definition exception, thus providing a legal basis for exception from the PACT Act requirements.
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The USPS is still in the process of finalizing the ENDS-related exception application requirements with a focus on efficiency given that the USPS expects a tremendous volume of exception requests. However, the good news is that USPS has acknowledged that hemp and CBD products will not necessarily fall under the ENDS definition, even though some have speculated that “other substances” was intended to cover non-tobacco, non-nicotine-containing substances.
While we must wait for the issuance of the final rule to know what the PACT Act exception process will look like, it is a good idea to reach out to a regulatory attorney about the compliance process ahead of time in preparation of the forthcoming regulatory changes.
Emily Burns is a recognized expert on cannabis-related legal, regulatory, and policy issues, having worked with a wide range of individuals and entities in both the public and private sector. You can contact Emily at info@or (503) 488-5424.