Congressional Ban On Mailing E-Cigarettes Appears To Cover Marijuana Vapes

The House and Senate passed a large-scale spending bill on Monday that includes a provision to restrict how electronic cigarettes can be sold online and shipped—and it could have an impact on the marijuana industry, too.

The text of the proposal uses an expansive definition of what qualifies as an “electronic nicotine delivery system” that seems to include products that don’t even contain nicotine.

The term “means any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device,” the legislation states (with italicized emphasis added).

It’s that last component that could be more broadly interpreted to prevent cannabis vaporizers from being purchased online and mailed by the U.S. Postal Service (USPS). Marijuana and its components such as THC and CBD presumably constitute “other substances,” even if they are not explicitly mentioned in the legislation.

“I agree that this could have a significant effect on cannabis vaping products, even if the intent is clearly to curb nicotine products,” Aaron Smith, chief executive officer for the National Cannabis Industry Association, told Marijuana Moment.

He added that the industry would be taking steps to push lawmakers and regulators to not interpret the newly passed bill’s language as affecting marijuana vaping devices.

“We’re making sure that Congress and the incoming administration understand that it would be a misguided waste of resources to apply this to the already heavily regulated cannabis industry,” Smith said. “In the long run, it’s important that cannabis is de-scheduled so it can be appropriately regulated at the federal level, clearing up ambiguities like this.”

By preventing vape manufacturers and retailers from utilizing USPS to ship their goods, the bill will effectively force them to use more expensive private courier services. The legislation also mandates that an adult over 21 present his or her ID to the courier upon delivery and requires online retailers to comply with rigorous requirements such as registering with the U.S. attorney general, maintaining certain records for five years and presenting state tax administrators with lists of transactions with customers in their jurisdictions, according to Vaping360.

Vaping advocates slammed the sponsors of the ban for the way it is drafted and for its inclusion in the must-pass spending and relief legislation.

“Thanks to their intransigence, the language included in the omnibus is so sloppily drafted that it will also ban the USPS from shipping CBD liquids intended to be vaporized, as well as devices intended for use with THC or other non-nicotine substances,” Gregory Conley, president of the American Vaping Association, said in a press release.

Under the bill, USPS will be required to “promulgate regulations to clarify the applicability of the prohibition on mailing of cigarettes…to electronic nicotine delivery systems” within 120 days.

Democratic legislators pushed back against a Republican attempt to include a flavored marijuana vaping ban in a broader anti-vaping bill that passed the chamber in February. They argued that it doesn’t make sense to prohibit products that are already illegal under federal law.

The vaping device provision is just one part of a multifaceted appropriations bill that is designed to keep the government funded through September 2021 and provide assistance amid the coronavirus pandemic.

The legislation also contains cannabis and drug policy-related provisions such as one to make it so students would no longer be disqualified from receiving federal financial aid over past drug convictions.

Further, it offers protections for state-legal medical cannabis programs and maintains a ban on Washington, D.C. implementing retail marijuana sales. It leaves out House-passed provisions to shield banks that service marijuana businesses from being penalized by regulators.

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