Among the many provisions, amendments, compromises and acts strapped aboard the omnibus spending bill, buried down on page 5,136, is a provision aimed at the nicotine industry, but which will be felt well beyond its intended target.
The Preventing Online Sales of E-Cigarettes to Children Act (known colloquially as the “vape mail ban”) sounds non-controversial. But hasty drafting and exceedingly broad legal language could make it a barrier between cannabis businesses and their customers, and between patients and their medicine. That’s because while the bill itself only legally bans the shipment of vaporizer products through the U.S. Postal Service, both FedEx and UPS are also independently following suit, closing off all avenues of shipment for cannabis vaporizer companies.
And according to those in the industry, that stands to have a significant impact on business.
“In legal cannabis markets across the country, the vaping component of our industry drives billions of dollars in revenue and creates thousands of jobs,” says Dana E. Shoched, CEO of O2VAPE. “By sliding this law-change into the back of the stimulus package … it effectively destroys our ability to serve consumers with the safe and responsibly produced equipment we develop.”
The root of this legislative change goes back to the Jenkins Act of 1949, which was intended to regulate the sale and taxation of cigarettes across the U.S. and to prevent “cigarette trafficking.” The new law redefines cigarettes under that old law to include “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.”
That last bit (with the italic emphasis added) is bad news for many in the cannabis industry, according to Shoched. By that definition, cannabis vapes will suddenly, technically, become “cigarettes,” and cannabis companies that rely on shipping them might be faced with millions of dollars in lost revenue, added extra costs and a whole host of new rules regulating the shipment of products.
“The act forces shippers of vape products to comply with stringent new rules, including registering with the U.S. Attorney General and maintaining and reporting buyers’ addresses and quantities of products,” Shoched says. Any business that fails to comply with these new changes could be subject to severe penalties, including prison time.
Shoched is a U.S. Navy veteran who started O2VAPES in 2013. Though she’s concerned the collateral damage of this new legislation will outright ban her from shipping vape hardware to her customers directly, she also worries it could complicate commercial product exchange.
“The very broad language used in the bill may put a stranglehold on commercial business-to-business shipments as well. Many products will disappear from store shelves,” Shoched forecasts. “Additionally, it will force consumers into a dangerous black market that should not exist.”
That last point is a notable one, in light of 2019’s outbreak of e-vaping-associated lung injury (EVALI). Hundreds of people were hospitalized over several months after using black-market and/or cheaply made vaporizer products — some died. By outright banning vape companies from shipping legitimate, high-quality products to customers, Shoched says that some users will shift back to using untrustworthy and dangerous products.
However, the most unfortunate aspect of the vape mail ban, according to Shoched, is that it means medical patients who rely on vaporizers (or those who switched because it was a safer alternative to smoking flower), won’t be able to access their medicine as easily. The language of the act is so broad that it bans shipment of THC, CBD and all of the other various cannabinoids people vaporize. They’re all technically “cigarettes” under this new legislation — and trafficking cigarettes is illegal.
“Sadly, this may just be the most dangerous legacy of this ill-considered act,” she says. “This law will choke the supply chain for the equipment that many of my fellow veterans and other medicinal cannabis patients around the country use to take their medication.”
The federal vape mail ban goes into effect on April 26 — although the private shipping companies are ceasing their deliveries of vape products even earlier. FedEx stopped shipping vapes on March 1 and UPS will cease to do so on April 5. After April, cannabis vapes (or should we call them “cigarettes?”) will not be legal to put into the mail.
Shoched and other business owners like her are exploring alternative options for shipping, and trying to get the word out about this last-minute provision that was slipped aboard the omnibus spending bill. But unless Congress decides to reverse the decision in the next two months, the vape mail ban is likely riding the stimulus bill into law — and companies like Shoched’s O2VAPES will be left on the curb with no means of shipping its products.
