Last week, the American Vaping Association teamed up with the Consumer Advocates for Smoke-Free Alternatives Association to present a webinar on how and why both consumers and businesses should respond to the United States Postal Service’s vape mail regulations.
With the deadline for comments coming up on Monday, March 22nd at 11:59 pm Eastern, we are releasing both the webinar video and our draft comments form for business stakeholders. Businesses should feel free to use as much or as little of our sample letter as you wish. Please be sure to edit the letter to fill in your information! (If you are a consumer of vaping products, CASAA has made it simple and easy for you to both file a comment and contact your elected officials in Congress.)
Submit your comments via email now!
Mail or deliver written comments to the Manager, Product Classification, U.S. Postal Service, 475 L’Enfant Plaza SW, Room 4446, Washington, DC 20260-3436. Email comments, containing the name and address of the Commenter, may be sent to: PCFederalRegister@nullusps.gov, with a subject line of “E-Cigarette Restrictions.”
UPDATE (3/18/2021): Some updates were made to the sample letter below to reflect new information.
(Microsoft Word version)
Date of Comment Submission, 2021
U.S. Postal Service
475 L’Enfant Plaza, S.W.
Washington, DC 20260-3436
Re: Treatment of E-Cigarettes in the Mail
Draft Comments Outline on USPS Rulemaking on Treatment of E-Cigarettes in the Mail
I write today regarding the February 19, 2021 proposed revision to the United States Postal Service (USPS) Publication 52, Hazardous, Restricted, and Perishable Mail, to incorporate the Preventing Online Sales of E-Cigarettes to Children Act (the “PACT Act”), which was passed by Congress and signed by the President in December of 2020. In amending the definition of “cigarette” to include “electronic nicotine delivery systems,” or ENDS, USPS is now faced with limiting and regulating the mailability of a new category of products in federal statute.
[Who Are You? If you would like, share information on your business, the number of people you employ, any tax data, or relevant information about you and your business.]
PACT Act Protects B2B Mailability and Broad Business Purposes Exception for Legal ENDS
The clear Congressional intent of the PACT Act was to make ENDS subject to the same USPS mailability limitations and exceptions for cigarettes, roll-your-own tobacco, and smokeless tobacco outlined in 1716E of Title 18, U.S. Code, which was enacted on March 31, 2010. While USPS was forced to exit the business-to-consumer market for the shipment of most tobacco products over ten years ago, exceptions were created for business-to-business shipping. Specifically, USPS currently permits shipments between registered and authorized tobacco-related businesses for business purposes. This exception should continue for ENDS under the PACT Act and upon enactment of this Final Rule.
Retailers, such as the more than 10,000 “vape shops” in America, are subject to a wide range of business permits and regulatory sales licenses that ensure USPS is already in a position to quickly verify any and all ENDS shipments between businesses are covered by the existing business-to-business shipping exception granted to traditional tobacco firms.
While few if any major tobacco companies have utilized the business purpose exception to the nonmailibility of cigarettes rule over the last decade, their unique business model has ensured that reliance on the USPS for the existence of a legal and regulated market has not been necessary. The same may not be true for the ENDS market, which is being jeopardized by the exiting of nearly all private common carriers such as FedEx, DHL, and UPS between now and April 5 for both business-to-business and business-to-consumer sales.
The refusal of FedEx, DHL, and UPS to service this market makes it all the more important that USPS preserve and reform all legal shipping options between verified businesses.
[Briefly share your business story on the importance of maintaining USPS as a carrier of ENDS to and from your business by other licensed businesses. If you have experience or knowledge, explain the importance of a reliable carrier like USPS efficiently handling and shipping ENDS between distributors and retailers across the country given the exit of FedEx and UPS from the market.]
Streamline, Digitize, and Simplify the B2B Exception Process
Given the significant number of businesses who may now come to rely on USPS as a legal carrier for ENDS under the business purposes exception, I urge you to simplify the exception process to ensure that there are no significant disruptions in the market for businesses seeking to provide adult smokers with lower risk alternatives to cigarettes. A wide range of businesses will need further guidance on the exception approval process and the specific information required to obtain approval to utilize USPS as a carrier of ENDS for business purposes. Ideally, this information would be available online before the final rule goes into effect to give businesses adequate time to apply for exceptions under the current permitted circumstances granted under statute and current practice.
There are more than 10,000 ENDS businesses in the United States who may need exceptions granted under this process, making it important not only for businesses that there is clarity and simplicity to the process but also the USPS as well. In the absence of a final rule, the USPS will not accept applications from these businesses right now. This threatens to create a massive logjam when the final rule actually is published. The USPS must come up with a solution to ensure that legal businesses aren’t shut out from legal shipping options for months or years.
One way USPS could simplify the exception process would be digitizing not only the specific business requirements but also the exception application itself. By uploading the necessary permits and business filing documents online, USPS would have access to verified businesses anywhere in the nation, ensuring that there are not unnecessary delays in the shipping process for ENDS businesses. This online portal could also be used by applicant businesses to verify the status of an approval for utilizing USPS as a shipping provider of ENDS in a timely manner.
Given the ongoing national pressure and budget constraints of USPS, simplifying the ENDS business-to-business delivery process is in everyone’s best interest, particularly if technology can reduce manhours required to process and handle new demands for thousands of businesses shipping upwards of hundreds of millions of dollars worth of products across the country.
[Share your perspective on the importance of ease for the business purposes exception to shipping ENDS through USPS, including your support for making the application itself and application status available online. Include information on the importance of certainty and clarity about how you can obtain an exception to the general nonmailability of ENDS between businesses.]
We also feel that USPS should rethink its current requirement that all packages mailed under the B2B exception must be done in an in-person, face-to-face transaction. This was not a requirement set by Congress and it imposes time and money burdens on both businesses and the USPS infrastructure. USPS should accept the approved business purposes exception documentation, verify that a recipient is a covered and approved authorized business recipient of ENDS products, and allow mailings through both the USPS pickup and drop-off system in place for other USPS-handled packages.
We also urge the USPS to update its field kit from 2010 on the PACT Act. While current USPS rule 472.222 permits those with B2B exceptions to ship using priority mail with signature at delivery to an approved recipient, the field kit on the USPS’ website is out of date and does not reflect this change.
The Roll Out of the Exception Process Must be Fair
As we understand it, the current position of the USPS is that because the final rule declaring ENDS nonmailable for B2C transactions has not yet been published, the USPS cannot accept applications for the B2B exception. Once the final rule is published, the USPS is likely to be hit with, at minimum, hundreds of applications from companies seeking the B2B exception.
First, we ask that the USPS not publish the final rule until the close of the 120-day period set by Congress. There is no need to rush the final rule, especially when the largest private carriers have abandoned the industry and smaller shipping services are rushing to bring themselves into compliance. This rule has sent shockwaves through the small- and medium-sized businesses in this industry, as well as consumers who rely on these products to stay smoke-free. There is no utility in publishing the rule earlier than the close of 120-day period.
Second, the USPS should and must explain how review of B2B exception applications will be prioritized. The USPS must make clear that they will not be giving big businesses preferential treatment over smaller businesses. We do not want anyone’s business operations to disrupted and hope the USPS can redirect resources to ensure that applications are processed quickly and efficiently. However, the USPS should not be picking winners and losers, so a “first in, first out” system is likely the most fair system to use.
Importance of Adult Consumer Access to Legal ENDS Under Review by FDA
Electronic cigarettes and nicotine vapor products are significantly less harmful than combustible cigarettes. Ranging from the Royal College of Physicians and Public Health England to the National Academies of Sciences, Engineering, and Medicine, the global consensus on vaping is that adult smokers who make the switch are significantly reducing their risks of cancer, illness, and disease.
[Share any story you might have of an adult smoker relying on ENDS you sell to successfully quit smoking.]
In 2019, the FDA’s Center for Tobacco Products Director Mitch Zeller expressed significant concerns over the potential outflux of businesses that offer ENDS to adult smokers, arguing that such a situation would negatively affect public health if adults who vaped were forced to return to cigarettes. His declaration holds true in this current climate, with legal ENDS businesses facing significant limitations on their ability to deliver products to other businesses and consumers.
[Share any information on what would happen if you could only receive or ship a limited number of your products. Would a reduction in available products harm your consumers? Would some of them go back to smoking? Share any real anecdotes.]
Thank you for considering these important issues.