Whether the USPS, a third-party common carrier, or your own delivery service is used, any person who sells, transfers or ships electronic nicotine delivery systems (ENDS) for profit in interstate commerce into a state, locality or Indian country of an Indian tribe taxing the sale or use of ENDS or who advertises or offers ENDS for such sale, transfer, or shipment, must register with ATF and file reports with the states, localities and Indian countries where the ENDS are being sold, transferred or shipped. See 15 U.S.C. §§ 375 and 376.
Additionally, an online sale of ENDS to a consumer who is not physically present is a delivery sale.
The term “delivery sale” means any sale of cigarettes (including ENDS) or smokeless tobacco to a consumer if:
- the consumer submits the order for the sale by means of a telephone or other method of voice transmission, emails, traditional mail, the internet or other online service, or the seller is otherwise not in the physical presence of the buyer when the request for purchase or order is made; or
- the cigarettes or smokeless tobacco are delivered to the buyer by common carrier, private delivery service, or other method of remote delivery, or the seller is not in the physical presence of the buyer when the buyer obtains possession of the cigarettes or smokeless tobacco.
See 15 U.S.C. § 375.
Delivery sales are subject to legal requirements relating to:
- recordkeeping requirements;
- all state, local, tribal, and other laws generally applicable to the sale as if the delivery sales occurred entirely within that specific state and place, including laws imposing—
- (A) excise taxes;
- (B) licensing and tax-stamping requirements;
- (C) restrictions on sales to minors; and
- (D) other payment obligations or legal requirements relating to the sale, distribution, or delivery of cigarettes or smokeless tobacco; and
- the tax collection requirements set forth in subsection (D).
See 15 U.S.C. § 376a.