The U.S. Postal Service (USPS) recently announced its final rule on the mailability of electronic nicotine delivery systems (ENDS), which include e-cigarettes, vape pens, and other devices that produce aerosolized nicotine or cannabisThe rule prohibits the mailing of ENDS products through the U.S. mail, unless they are shipped by authorized manufacturers or retailers to verified adult recipients. The rule was issued in response to the Preventing Online Sales of E-Cigarettes to Children Act, which was passed by Congress in December 2020 as part of the Consolidated Appropriations Act.
The Impact of the Rule on the Cannabis Industry
The USPS rule does not explicitly mention cannabis or hemp products, but it defines ENDS as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device”. This broad definition could potentially include devices that deliver cannabidiol (CBD) or tetrahydrocannabinol (THC), the main active ingredients of cannabisThis means that cannabis businesses that rely on the U.S. mail to ship their products to customers could face legal consequences if they continue to do so.
The rule also affects other carriers, such as FedEx, UPS, and DHL, which have announced that they will stop accepting ENDS shipments as well. These carriers have cited the increased regulatory and compliance risks, as well as the operational challenges, of verifying the age and identity of the recipients of ENDS products This leaves the cannabis industry with few options for delivering their products to customers, especially in states where cannabis is legal for medical or recreational use.
The Need for Sensible Cannabis Regulations
The federal e-cigarette ruling highlights the danger of not preparing for sensible cannabis regulations at the national levelCannabis remains illegal under federal law, even though 40 states have legalized its use in some form. This creates a patchwork of state laws and regulations that are often inconsistent and contradictory, making it difficult for cannabis businesses to operate legally and safely.
The cannabis industry has been calling for federal legalization or decriminalization of cannabis, as well as the removal of cannabis from the Schedule I category of the Controlled Substances Act, which classifies it as a drug with no accepted medical use and a high potential for abuse. Such reforms would allow cannabis businesses to access banking services, tax deductions, research funding, and interstate commerce, as well as to protect their intellectual property rights and consumer safety standards.
The Department of Health and Human Services (HHS) has recently recommended that the Drug Enforcement Administration (DEA) ease the government restrictions on marijuana, by moving it from Schedule I to Schedule III, which would acknowledge its medical value and lower its abuse potential. This recommendation was made in response to President Joe Biden’s request for a review of the drug in 2023. However, the final decision rests with the DEA, which has not yet announced its public review process.
The Future of the Cannabis Industry
The cannabis industry faces many challenges and uncertainties in the wake of the federal e-cigarette rulingSome cannabis businesses may have to resort to alternative delivery methods, such as curbside pickup, local delivery, or drive-through services, to reach their customers. Others may have to invest in more sophisticated and secure packaging and labeling systems, to comply with the state and federal laws and regulations. Some may even have to cease their operations altogether, if they cannot find a viable way to ship their products.
However, the cannabis industry also has many opportunities and possibilities for growth and innovation. The demand for cannabis products is high and increasing, as more people use cannabis for medical or recreational purposes. The cannabis industry is also diverse and dynamic, offering a variety of products, such as flowers, oils, edibles, beverages, topicals, and concentrates, to suit different preferences and needs. The cannabis industry is also resilient and adaptable, having survived and thrived despite the legal and social stigma and discrimination.
The federal e-cigarette ruling is a wake-up call for the cannabis industry, as well as for the policymakers and regulators, to work together to create a sensible and sustainable framework for the legal and safe use of cannabis in the U.S. The cannabis industry has the potential to contribute to the economic, social, and environmental well-being of the country, if it is given the opportunity and support to do so.
