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The Pact Act Expansion And What It Means For Those Who Vape

Cannabis / How to Choose / April 29, 2021

The PACT Act, which stands for Prevent All Cigarette Trafficking Act, was originally passed in 2009 to curb the illegal sale of cigarettes. As part of the Act, the United States Postal Service was barred from delivering cigarettes and smokeless tobacco products directly to consumers. Now, the Act has been expanded to include vaporizers, vaporizer accessories, and other associated paraphernalia.

Originally an amendment to the 1949 Jenkins Act, the APCT act was an effort passed by legislators to counter the online sales of untaxed cigarettes. As part of that law, three things took place:

The USPS was prohibited from offering mail delivery of cigarettes and smokeless tobacco products to any residential or business customer.

Online retailers were required to register with the Bureau of Alcohol, Tobacco, and Firearms (ATF).

Online retailers also had to register with the tax administrators of states in which they did business.

The PACT Act also initiated and enforced the framework for state and local tax collection from online retailers, as well as established standards for private carriers who were still allowed to deliver cigarettes and smokeless tobacco products to residential and business customers. As you can see, the language has been rather explicit to include only tobacco and tobacco products, based on its 2009 iteration.

Fast forward to December 2020, when Legislators passed the Preventing Online Sales of E-Cigarettes to Children Act. This law amended the PACT Act to include vaping products, regardless of what went in them. While the goal may have been to better oversee tax compliance and prevent online sales to minors, online retailers had to comply with a few more rules on top of the 2009 PACT Act decree. These requirements included:

  • Requirement to verify customers’ age using a commercially available database
  • Requirement to use private shipping methods and collect signatures of an adult upon delivery
  • Requirement to register the business entity with the Bureau of Alcohol, Tobacco, and Firearms and the U.S. Attorney General
  • Requirement to register the business entity with state and municipal tax administrators in all regions where business is conducted
  • Requirement to collect and pay any and all local and state taxes, affixing the required tax stamps on each product sold.

Every month, compile a list of all transactions that are to then be sent to each state’s tax administrator. Those reports will include the names and addresses of each customer sold to, as well as which products sold, the quantities and type of each product sold, and the name, address, and phone number of the person delivering the shipment to the recipient.

Labeling conditions also followed, along with delivery restrictions and recordkeeping requirements.

The 2021 amendment uses particular language to expand its reach to include all Electronic Nicotine Delivery Systems. Because legislators love their acronyms, this one gets the apt moniker of ENDS. While tobacco and more specifically nicotine are the targets of the legislation, one would think cannabis would be free from interference. Think again.

According to the Act’s amendment “The term “ENDS” is defined very broadly to essentially include all vaping products, liquids, components, and accessories, whether they contain nicotine or not.” The language of the law defines an ENDS product specifically as “any electronic device that, through an aerosolized solution, delivers nicotine, flavor, or any other substance to the user inhaling from the device.” This includes any “e-cigarette; an e-hookah; an e-cigar; a vape pen; an advanced refillable personal vaporizer; an electronic pipe; and any component, liquid, part, or accessory of a device described [above], without regard to whether the component, liquid, part, or accessory is sold separately from the device.”

Using the above definition of an ENDS device, one could reasonably come to the conclusion that nicotine-free e-liquids, synthetic e-cigarettes, and, yes, cannabis products free of nicotine also fall under the ENDS designation.

While the legislation forbids the USPS from acting as a courier for these devices moving forward, FedEx and UPS have voluntarily signed on, stating that they will adhere to the provisions outlined in the legislation. The result? No more vape products shipped by post or parcel service. It’s simply too much of a headache for these 3PLs to comply with the restrictions of the ATF. So, they’re following the path of least resistance and turning their back on the fulfillment business when it comes to vaping products and accessories. Many larger online retailers even attempted to file for exemptions but were ultimately denied. So where does that leave consumers looking to maintain their vaping routine? One ray of hope can be found in a recently rumored partnership between a private group buying company and a national residential shipping carrier that is known simply as X. X is claiming to be the only national shipping carrier that can ship vape products in operation today. If all goes well, and we hope for vapers’ sake it will, a market will remain open and business won’t have to shutter, nor will vapers have to quit cold turkey.

While the online retail market still exists legally, shipping their products legally is another matter. Retailers are working diligently to develop solutions to this problem. Suffice to say, the landscape of buying and selling vaping products and accessories online is going to change drastically in the coming months.

Gregory Conley, President of the American Vaping Association recently spoke to Vaping360, an industry publication focused on all things vaping. In that conversation, Conley assured retailers and customers that “This is a very competitive market, so companies are going to try to meet customers’ needs without going bankrupt.” Certainly, companies will need cash flow to remain afloat while logistics are sorted out over the next 90 days. Conley continued, adding, “You’re already seeing smaller players begin to exit the market, because of shipping restrictions and PACT Act compliance, but also because of new FDA enforcement actions against manufacturers that didn’t apply for PMTAs. At least in the short term, if you’re not shipping hundreds of products [a day], you’re either going to have to close your business or figure out a partnership with someone who does ship a lot of products.”

So, where does that leave us today? Alternatives do exist and the casual consumer should be able to get by with local retailer stock until the kinks in this new system are worked out among legislators, carriers, manufacturers, and consumers.

If you’re especially hard-up or don’t want to wait to re-up, you may want to consider making your own THC vape juice at home. Using long or short-term THC extraction methods as well as Rosin Extraction can keep you in good standing. Heck, you may even find you prefer to make your own vape juice over buying cartridges from manufacturers and retailers. Depending on how much time you have available, these above-mentioned methods can produce an extract ready to vape anywhere between 2 hours and three months. Each method is effective and will build your repertoire as a resourceful vape artist.

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